Teva UK Ltd & Teva Pharmaceutical Industries Ltd v LEO Pharma A/s, England and Wales Court of Appeal (Sir Robin Jacob, Kitchin and King LJJ), London, UK, 28 July 2015, Neutral Citation Number:  EWCA Civ 779
This is an appeal against Birss J’s finding that two LEO patents were invalid for lack of inventive step. The key claims of the patents were for a combination of the active pharmaceutical ingredients calcipotriol and betamethasone, alongside the non-aqueous solvent Arlamol E. The patents cover Leo’s Dovobet Ointment product, a dermal treatment for psoriasis.
The Court of Appeal held that Birss J had erred in his application of the law on the assessment of inventive step, thereby allowing the Court of Appeal to revisit the assessment de novo. It is worth noting that in the absence of an error of principle, the English appellate Courts will be very cautious in differing from the first instance judge’s evaluation of the question of inventive step as it is considered a kind of jury question (see the House of Lords judgment in Biogen v Medeva at paragraph 54). Sir Robin Jacob (with whom Kitchin and King LJJ agreed) returned to the bench for this appeal and delivered the leading judgment.