Teva v. Sepracor, Commercial court of Antwerp, 11 December 2009, Docket number A/08/5474
The Antwerp commercial court has annulled the Belgian tier of Sepracor’s European patent (EP 663 828) for “compositions for treating allergic disorders using (-) cetirizine”, as well as the ensuing SPC for “levocetirizin dihydrocholorid”. Applying (a hybrid version of) the problem-solution approach, the court found that the invention of EP ‘828 was obvious for the skilled person, who was held to be a team composed of persons with a medical, chemical and pharmacological background.
According to the court, the skilled person would have been able to solve the objective technical problem (circumscribed as “finding a substance which can be used for the treatment of allergic rhinitis and asthma and which is at least as effective and advantageous as ceterizine, yet having no or fewer side effects than racemic cetirizine”) with a reasonable expectation of success by combining a number of prior art documents. Referring to T 296/87, the court added that a skilled person who wants to preserve the pharmacological properties of a racemic mixture, but with less side effects, would routinely examine both enantiomers separately to see if he can achieve that goal.
Read the decision (in Dutch) here.
Head note: Philippe de Jong