Glenmark Generics B.V. v. The Wellcome Foundation Limited, District Court The Hague, The Netherlands, 19 June 2013, Case No. / Docket No. C/09/426594 / HA ZA 12-1064
The Wellcome Foundation Limited is the holder of a European patent 0 670 719 B1 for a combination of atovaquone with proguanil for the treatment of protozoal infections. On 7 February 2013 the UK part of the patent at hand was declared invalid by the High Court of Justice, Chancery Division, Patents Court (Arnold J) in light of a lecture given by one of the inventors of the patent, Dr. David Hutchinson, prior to the priority date of the patent. On 17 April 2013, the preliminary relief judge of the District Court of The Hague already ruled that there is a serious likelihood that the patent shall be invalidated in proceedings on the merits.
The District Court of The Hague now rules in line with these earlier judgments. In the presentation of Hutchinson the combination of atovaquone with proguanil was already discussed as very promising and further dose ranging studies were recommended. The court accepts the argument of Glenmark that the skilled person would have arrived at the invention by performing routine dose ranging studies. The fact that the results presented by Hutchinson were surprising is not relevant since the results were so positive that further research would be obvious. The same holds for the fact that the results were based only on a relatively small study population. The fact that combinations with other compounds would also be (more) obvious, does not alter the conclusion that the combination with proguanil is obvious, according to the court.
Read the judgment (in Dutch) here.
Head note: Paul van Dongen