EPLAW Patent Blog

NL - Lübbers v. Relco and annular gap injectors

Lübbers Anlagen und Umwelttechnick GmbH v. Relco Wet & Dry B.V., accelerated patent proceedings before the District Court of The Hague, the Netherlands, 25 January 2012, Case No. 387236 / HA ZA 11-451 
 


On 25 January 2012, the District Court of The Hague ruled in the case brought by Lübbers against Relco. Lübbers acted as the exclusive licensee for EP 1 105 202 (relating to an annular ring injector aimed at cleaning air purification chambers), which patent is owned by Dutch patent holder and licensor Korporam B.V. Lübbers sought an injunction against Relco for patent infringement, but saw the invoked patent partially invalidated instead. Relco attacked the patent on grounds of lack of clarity / insufficiency, lack of novelty and lack of inventive step.

The Court ruled that although lack of clarity arguments under Article 84 EPC are not as such admissible in national proceedings, but that such arguments can indeed lead to invalidation on grounds of insufficiency (Article 83 EPC). Claim 4 is invalidated for that reason.

FR - Novartis v. Sanofi / Valsartan (ex parte)

Novartis AG and Novartis Pharma v. Sanofi-Aventis France, Sanofi-Aventis Winthrop Industries and Zentiva K.S., the President of the Court of First Instance (ex parte preliminary injunction), Paris, France, 27 October 2011, Case No. 11/15302, with thanks to Pauline Debre, Bird & Bird, for providing a summary and comments in English

On 27 October 2011, the President of the Court of First Instance in Paris ordered ex parte preliminary injunctions against Sanofi-Aventis France, Sanofi-Aventis Winthrop Industries and Zentiva K.S. (hereinafter "Sanofi"), prohibiting the Valsartan generic Zentiva from being sold on the French market.

This ruling is important in two respects:

1. It is one of the first decisions in which an ex-parte preliminary injunction has been ordered in a patent case in France; and

2. It seems to conflict with a recent decision of the Court of Appeal in Paris on the extent of protection given by supplementary protection certificates.

Read the entire summary below the break:

 

NL - Wagner v. Prevent

Wagner Group GmbH v. FX Prevent B.V., District Court The Hague, The Netherlands, 23 November 2011, Case No. 11-458
 
In its judgment of 23 November 2011, the District Court of The Hague ruled that FX Prevent infringed upon claim 1 and 10 of Wagner’s European patent EP 1 062 005. This patent relates to a fire extinguishing method by way of lowering the oxygen amount in the air of the closed room in two steps. FX Prevent argued that Wagner’s patent  is not novel and did not involve an inventive step, however failed to prove it. According to the court FX Prevent did not substantiate these argument in any way. No dated documents were submitted. Moroever, the argument that the patent did not involve any inventive step was raised for the first time during the oral hearing, which is too late. FX Prevent did not deny the infringement. The court therefore ruled that FX Prevent has to cease and desist from infringing the patent.

Read the judgment (in Dutch) here.

Headnote: Wim Maas

FR - Sandoz v. Eli Lilly

SAS Sandoz v. Eli Lilly and Company, Court of Appeal of Paris, France, 13 January 2012, Case No. 10/17727, with thanks to Dominique Menard and Stanislas Roux-Vaillard, Hogan Lovells, for providing the judgment and an extended summary in English

On 13 January 2012, the Court of appeal of Paris confirmed the judgment which found that the French part of Eli Lilly's patent No. EP 0 577 303 regarding a process for stereoselective glycosylation shows inventive activity, is sufficiently disclosed and consequently valid. The failing generics company is ordered to pay half a million Euros in attorney's fees.

Read the entire summary (in English) here.

Read the judgment (in French) here.

UK - Apimed Medical Honey v. Brightwake Limited

Apimed Medical Honey Limited v. Brightwake Limited, Court of Appeal, London, UK, 20 January 2012, Case No. [2012] EWCA Civ 5

The patent claimed a composition (commercially available as Algivon) for a wound dressing combining honey with a "gelling agent". The gelling agent increases viscosity to the extent that it results in a flexible sheet or pliable putty which can be moulded to fit the wound, providing a way to retain the honey at the wound site. All but one of the examples in the patent relied on sodium alginate as "a gelling and viscosity increasing" agent. Apimed brought an infringement claim against the manufacturer, Brightwake, of an allegedly infringing product. Brightwake’s product was a sheet formed from calcium alginate fibres and then coated with honey. Brightwake counterclaimed for revocation of the patent on the grounds of lack of novelty and obviousness. 

Held: on appeal, overturning the Patents County Court's finding of obviousness, Kitchin LJ focussed on the fact that the prior art paper taught solid honeys may be liquefied by warming and semi-solid honeys may often be liquefied by stirring. As such, the paper contemplated that the honey should be softened. This was contrary to the teaching of the patent. It also described the spreading of honey on a dressing pad or, alternatively, that it should be squeezed directly into a deep wound. There was no description of what may be said to be the heart of the invention of the Patent, namely the use of a gelling agent to increase the viscosity of the honey to such a degree that it can be formed into a flexible sheet or a pliable putty without the need for any separate dressing at all. There had been an error of principal by the first instance judge, because he had failed to identify the above differences between the prior art and the invention and whether those differences, without any knowledge of the invention, would have been obvious to the person skilled in the art.

NL - Sanofi Aventis v. Ratiopharm / Clopidogrel and aspirin

Sanofi Aventis v. Ratiopharm GmbH and Ratiopharm Nederland B.V., Court of Appeal The Hague, the Netherlands, 1 November 2011, Case No. 200.068.342/01
 
In its judgment of 1 November 2011, the Court of Appeal of The Hague has confirmed the District Court’s decision that Sanofi-Aventis’ patent EP 0 881 901 relating to a pharmaceutical composition comprising a combination of the active substances clopidogrel and aspirin was invalid for lack of inventive step.  Clopidogrel and aspirin have a synergistic effect on the inhibition of blood platelet aggregation, which means the combination product is useful for the treatment of thrombosis.

The Court dismissed Ratiopharm’s argument on claim construction. According to the Court, the term “composition containing ” (both clopidogrel and aspirin) did not necessarily mean that both active substances had to be included in one dosage form. However, the Court did agree with Ratiopharm that the patent was obvious, in light of the prior art publications that indicated to the skilled person that a combination of ticlopidine, an active substance with properties similar to clopidogrel, and aspirin had a synergistic effect on blood platelet aggregation. The skilled person would have had an incentive to replace ticlopidine with clopidogrel, in light of other prior art documents indicating that clopidogrel had shown better results and less side-effects than ticlodipine.

Sanofi-Aventis’ argument that the skilled person would not consider combining the two active substances, in light of the known risk of extended bleeding time, was dismissed. The Court held that the skilled person would not be deterred by the data relating to extended bleeding time from using the combination product, but would weigh the severity of the condition to be treated and the known potential benefits of the combination product against the known risks.

Read the decision (in Dutch) here.  

Head note: Jaap Bremer

UK - Nokia v. IPCom

Nokia Oyj (Nokia Corporation) v. IPCom GmbH & Co KG, Patents Court, Floyd J, High Court of Justice, London, UK, 21 December 2011, Case No. [2011] EWHC 2719 (Pat)

Following the decision of Mr Justice Floyd of 16 June 2011 ([2011] EWHC 1470 (Pat)), in which he held that IPCom’s patent in suit had been infringed by two Nokia devices, an issue arose as to whether the financial relief which would normally be awarded to IPCom should be restricted by the terms of section 63(2) of the Patents Act 1977 which provides that, where a patent is found to be partially valid, the Court must take into account in awarding such relief whether the specification of the patent was framed in “good faith and with reasonable skill and knowledge” (“GFRSK”).

In an interim decision handed down on 26 October 2011 ([2011] EWHC 2719 (Pat)), Mr Justice Floyd held that the burden of establishing a lack of GFRSK lies with the party who raises the issue (in this case, Nokia). However, on the basis that the Court was not fully in possession of the facts, he refused to decide on the issue of GFRSK and the effect thereof on the award of relief itself, and ordered that IPCom respond to a request for information from Nokia. The current decision follows IPCom’s provision of further information and further submissions and evidence by both parties on the issue of GFRSK.

Now, in his decision of 21 December 2011, Mr Justice Floyd has found that there was no lack of GFRSK by IPCom.

NO - Pharmaq v. Intervet International

Pharmaq AS v. Intervet International B.V. and Intervet Norge AS, Borgarting Court of Appeal, Norway, 22 December 2011, Case No. 10-103765ASD-BORG/03

On 22 December 2011 the Borgarting Court of Appeal rendered its decision in the case between Pharmaq AS (hereafter Pharmaq), and Intervet International B.V. and Intervet Norge AS (hereafter Intervet) regarding Intervet’s patent NO 317547.

NO 317547 concerns an isolated biological material in the form of a virus used in the development and production of vaccine against a disease affecting farmed fish, such as Atlantic salmon. The disease affects the fish pancreas and is called pancreatic disease. Biological materials are, in accordance to Norwegian law and its international obligations, considered patentable and qualify as an invention as long as certain requirements are fulfilled.

Read an extended summary in English, provided by Grette, here.

Read the judgment (in Norwegian) here.

NL - Pfizer v. UVIT and VGZ

Pfizer Health AB v. UVIT U.A. and Pfizer Health AB v. VGZ Zorgverzekeraar N.V., District Court The Hague, The Netherlands, 16 December 2011, Case. No. 406470 / KG ZA 11-1302 and 407549 / KG ZA 11-1357

UVIT and VGZ are both health insurance companies. Within the framework of the so-called 'preference policy' the insurance companies can appoint one supplier of a pharmaceutical product as their preferred supplier for that pharmaceutical product, meaning that only products from that supplier will be reimbursed. The innovator, generics and parallel importers may all take part in a closed-bid auction and the insurance company will select the supplier who offers the largest discount relative to the standard public price.
 
Pfizer alleges that inviting companies to bid within the patent (SPC) term constitutes an infringing act or that it is otherwise unlawful. The preliminary relief judge rules that the acts of the insurance companies in relation to the auction are no infringing acts in the sense of the Dutch Patent Act. The judge does agree with Pfizer that bidding by the potential suppliers within the patent term is an infringing act. Provoking such acts could in principle be unlawful, according to the judge. However, the auction at stake in the present proceedings was prolonged by the insurers until after the end of the patent term. There was no proof that any infringing bids had been received within the patent term. Since the insurers have promised that they will further organise this auction in line with the present judgment, the judge finds that there is no need for an injunction.
 

Read the decision (in Dutch) here.

Head note: Paul van Dongen

UK - Omnipharm Limited v Merial

Omnipharm Limited v Merial, Patents Court, High Court of Justice, London, 21 December 2011, [2011] EWHC 3393 (Pat)

Omnipharm sought revocation of two patents on grounds of obviousness, insufficiency and added matter: EP(UK) 0881881 and EP(UK) 2317564. Only the attack of obviousness of '881 and insufficiency of '564 are dealt with in this note. Omnipharm also sought declarations of non-infringement in respect of certain flea treatments and the question of whether there was standing to do so was raised. The patents relate to antiparasitic compositions for protecting pets or small mammals from fleas. In particular, '881 claims a ready-to-use solution comprising a crystallisation inhibitor, an organic solvent and organic cosolvent of specified dielectric constants and boling points. This claim 1 was also put forward in amended form as claim 1A, limited to the active ingredient fibronil and to the form of a spot on solution for localised application. '564 (as proposed to be amended) claimed fipronil in combination with at least one ovicidal compound of insect growth regulator (IGR) type.