Laboratoires Negma v. Biogaran and Laboratoires Medidom, Cour d’appel of Paris, 30 June 2010, Docket no. 10/07477, with thanks to Pierre Véron, Véron & Associés for sending in the judgment and the translation
In a case regarding novelty of a patent over a pharmaceutical preparation already disclosed in the prior art but claimed with a higher purity level of the active ingredient, the Court of Appeal of Paris decided that "the parameters that are not inherent to the chemical compound itself, but rather are extrinsic, shall not be taken into account in order to determine the novelty of a product, which may not acquire novelty simply because it is prepared in a purer form".
Consequently, even where the existence of undesirable impurities is disclosed in the patent at stake as a disadvantage of prior art, where prior art discloses the use of the chemical compound at stake as well as the compound itself without any explicit reference to the level of purity reached, an experiment evidencing the fact that by scrupulously following the examples described in the prior art a person skilled in the art using his/her general knowledge at the date of the patent could reach a higher purity level as claimed, is enough to show a lack of novelty within the meaning of Article 52 and 54 EPC.
Read the judgment (in French) here.
Read the judgment (in English) here.
Head note: Stanislas Roux-Vaillard