Glenmark Generics (Europe) Limited, Generics (UK) Limited (t/a Mylan) v. The Wellcome Foundation Limited, Glaxo Group Limited, High Court of Justice, Chancery Division, Patents Court, London, UK, 7 February 2013,  EWHC 148 (Pat)
The Patents Court held that GSK’s patent for an anti-malarial drug was invalid.
Glenmark and Mylan applied to revoke GSK’s patent EP (UK) 0 670 719 relating to an anti-malarial pharmaceutical composition comprising a combination of atovaquone and proguanil in the ratio 5:2. The composition is sold by GSK under the trade mark Malarone and it is the most successful anti-malarial prophylactic in the UK. Glenmark and Mylan each planned to sell generic versions of Malarone and there was no dispute that the generic versions fell within the scope of the patent.
Glenmark and Mylan argued that the patent was invalid for obviousness in light of two items of prior art. One was a presentation and the other was an abstract relating to a lecture. The only difference between claim 1 of the patent and the presentation was that the presentation did not disclose the 5:2 ratio for atovaquone and proguanil. Mr Justice Arnold held that it would have been obvious to perform a larger version of the trial described in the presentation and that this would have led to the identification of the appropriate ratio. Mr Justice Arnold also held that the patent was obvious in view of the abstract which stated that a combination of atovaquone and proguanil had produced a cure rate of 100% for treating malaria and noted that the skilled team would have faced no technical obstacle in replicating the work reported in the abstract.
Read the judgment (in English) here.
Head note: Rob Fitt