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Swiss-Form Claims, Skinny Labelling and the duty of the National Health Service – the Lyrica case continues

By Claire Phipps-Jones and Brian Cordery

At the end of January, we reported the Warner-Lambert v Actavis decision of 21 January 2015, in which Arnold J refused to grant Warner-Lambert interim relief in relation to an apprehension of patent infringement by Actavis of Warner-Lambert’s patent comprising Swiss-form claims directed to the use of pregabalin in the preparation of a medicament for the treatment of pain. The apprehended patent infringement pertained to Actavis’ generic pregabalin medicine. Actavis had carved-out pain indications from the label for its medicine but it was nevertheless foreseeable that some of these medicines would be dispensed and used for pain in the UK.

The ju [...]

European criticism on high renewal fees as proposed for Unitary Patent

The European business sector and the European Commission have voiced concern about the level of the renewal fees for the Unitary Patent, as proposed by the European Patent Office (EPO).

The two EPO proposals for the fee level, often designated as the ‘Top 4 model’ and ‘Top 5 model’ have been discussed on the Kluwer Patent Blog here.

highfeesahead2Earlier this month, a group of large European companies sent a joint letter to Ministers and Heads of Government of European countries. In the letter, which is in the possession of Kluwer IP Law, the companies (Philips, Scania, Ericsson, Nokia, Alfa Laval, Air Liquide, Danfoss, Storaenso and NXP) state:

‘The level of the renewal fees is crucial for indu [...]

The decision „Schleifprodukt“ of the German Federal Court of Justice – a step towards harmonisation with the EPO practice?

The judgement “Schleifprodukt” rendered by the German Federal Court of Justice on 25 November 2014 could be seen as a step towards harmonisation with the EPO because the court carried out the test for the admissibility of claim amendments by assessing whether the feature combination of the amended claim in its entirety represents a technical teaching which is identifiable from the original application as being suitable for achieving the effects of the invention.

Maximizing Patent Term Adjustment For U.S. Patents

Under U.S. patent laws, the 20-year term of a patent can be extended if the USPTO fails to meet certain timeliness benchmarks during the patent examination process. The statute provides for Patent Term Adjustment (PTA) equal to the number of days of USPTO delay, less the number of days of applicant delay. The statute defines taking more than three months to respond as one type of applicant delay, and delegates authority to the USPTO to define other circumstances that amount to applicant delay, which the USPTO has done in 37 CFR § 1.704. While many of the USPTO’s circumstances are not surprising, one category in particular can result in PTA deductions for actions made to advance prosecution. [...]

The Netherlands: Rhodia Operations S.A.S. v. Jiaxing & Wanglong, District Court of The Hague, C/09/470674, 21 November 2014

The District Court The Hague finds that it is competent based on Article 7 Dutch Code of Civil Procedure (Article 6(1) Brussels I / Article 8(1) Brussels Ibis – plurality of defendants) even though the article’s preconditions are no longer met.

A full summary of this case has been published on Kluwer IP Law.

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Switzerland’s SPC granting practice drawn into a future mess?

In the aftermath of the CJEU decisions Eli Lilly/Medeva and Actavis/Georgetown II, the Swiss Federal Institute of Intellectual Property proposes changes in its SPC granting practice.

One hot topic in connection with the granting of SPCs concerns the question on how to define whether a product is protected by a basic patent (Art. 3 (a) SPC Regulation (EC) No. 469/2009). This discussion became particularly relevant with respect to combination products with multiple active ingredients. The national courts in the EU member states basically have applied two different approaches: the so called “infringement test” and the “disclosure test”.

In Switzerland SPCs for combination products have [...]

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