Idenix Phamaceuticals, Inc v Gilead Sciences, Inc and Gilead Sciences Ltd and Centre National de la Recherche Scientifique and Universita Degli Studi de Cagliari and L’Universite Montpellier II, Patents Court, Neutral Citation Number:  EWHC 3916 (Pat)
The UK Patents Court has held, in a judgment handed down on 1 December 2014, that European Patent (UK) No. 1 523 489, which concerned certain compounds for the treatment of Flaviviridae including Hepatitis C, was invalid on the grounds of lack of novelty, obviousness, insufficiency and (for some claims only) added matter.
Idenix contended that the sale by Gilead of Solvaldi (sofosbuvir) infringed the patent. Gilead counterclaimed for invalidity, including lack of novelty over their earlier International Patent Application. This claim required the judge (Arnold J) to consider the legal claim to priority of that application. This raised issues of fact and US law. Together with the other invalidity issues raised the judgment stretches to 621 paragraphs.
The case is interesting for a number of reasons but of particular interest is the part of the judgment that considers the application of the EPO case law in the context of obviousness. This judgment is the first time that a UK judge has considered the EPO Board of Appeal decision AgrEvo (T 939/92) in the context of obviousness. Previously the AgrEvo type analysis has been rolled up into insufficiency (see e.g. Regeneron v Genentech). Idenix suggests an approach to obviousness more aligned with that of the EPO.