Eli Lilly and Company v. Human Genome Sciences, Court of Appeal, London, UK, 5 September 2012, with thanks to Penny Gilbert, Powell Gilbert, for sending in the case
"This follows on from the Supreme Court's finding that the HGS patent had industrial application, leaving the Court of Appeal to review issues on the law of sufficiency in relation to antibody claims and an issue of extension of protection. The HGS appeal succeeded, and Lilly's Appeal was dismissed, so that all claims of the HGS patent were held valid."
Eli Lilly and Company v Human Genome Sciences Inc, Patents Court, 3 August 2012, [2012] EWHC 2290 (Pat)
This decision concerned supplementary protection certificates (SPCs) and specifically the questions of (i) whether a person is permitted to obtain an SPC based upon a marketing authorisation (MA) obtained by another, and (ii) whether the relevant patent claim sufficiently identified or specified a particular antibody in order for an SPC to be obtained in the light of the CJEU ruling in Medeva, Queensland and related cases.
Eli Lilly’s concern was that if it obtained an MA for its antibody before the Patent expired, HGS might then seek an SPC based on Eli Lilly’s MA. Eli Lilly therefore commenced proceedings seeking a declaration from the court that HGS was not entitled to obtain a valid SPC. Eli Lilly then brought an application requesting the court to make an immediate reference to the CJEU in order to enable the above questions to be determined. HGS applied for Eli Lilly’s claim for a declaration to be struck out, on the basis that it had been made prematurely and could not be resolved whilst the factual position was unclear.
The relevant patent was HGS’s EP (UK) No. 0 939 804. The Patent has already been heavily litigated in proceedings between Eli Lilly and HGS, including a leading decision of the UK Supreme Court reversing the earlier findings of the Patent Court and Court of Appeal that the Patent was invalid for insufficiency. The Supreme Court remitted certain outstanding validity issues back to the Court of Appeal. Validity of the Patent was therefore the subject of other proceedings and still to be determined.
Human Genome Sciences (patentee) v. Eli Lilly (opponent), Cooperation between Board of Appeal and National Court / Acceleration of appeal proceedings, EPO Board of Appeal, 21 October 2009, Case No. T0018/09
In this case, the
UK Court of Appeals requested the Board of Appeal to accelerate the parallel EPO
appeal proceedings in order to have that appeal decided prior to the UK appeal
hearing (which was then scheduled for December 2009, see Eli Lilly and Company v. Human Genome Sciences, Inc. [2008] EWCA Civ 168).
The Board acknowledged the practical and economic benefit of the national court's request and stated that it agrees entirely with the national appeal court that parties to such parallel proceedings should inform both tribunals of the position as early as possible and ask the appropriate tribunal for acceleration in order to avoid duplication of proceedings. Whether acceleration is requested by one party, or both or all parties in agreement, or by a national court, all parties must accept a strict procedural framework including short time limits. It must also be understood that acceleration can have no effect on the equal treatment of all parties and cannot confer any advantage on any one party.
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