Resolution Chemicals Limited v H. Lundbeck A/S, High Court of Justice, Patents Court, London, UK. Case No.  EWHC 739 (Pat)
Resolution sought revocation of Lundbeck’s SPC for escitalopram on the basis of the alleged invalidity of the basic European Patent (UK) No. 0 347 066 (“the Patent”). Escitalopram is the (+) enantiomer of citalopram, a selective serotonin re-uptake inhibitor used to treat depression.
On 3 January 2013 Lundbeck issued an application seeking, amongst other things:
1. Summary judgment on the ground that Resolution was precluded from bringing its claim
The validity of the Patent was previously challenged unsuccessfully by Arrow, Teva UK and Teva Pharmaceutical Industries Ltd (“Teva PI”), and it was common ground that Arrow, Teva UK and Teva PI would be precluded by issue estoppel and the doctrine of abuse of process from challenging the validity of the SPC on the ground that the Patent was invalid. Lundbeck argued that Resolution was also precluded from doing so by virtue of privity of interest with Arrow, or alternatively with Teva UK or Teva PI.
Mr Justice Arnold reviewed the law on privity, confirming that what is required is “a sufficient degree of identification between the relevant persons to make it just to hold that the decision to which one is party should be binding in the proceedings to which the other is party” and that this may or may not be the case for group companies. He applied the law to the facts as follows.