Calcium Atorvastatin II, Court of Appeal Barcelona (Audiencia Provincial Barcelona), 30 October 2009
After a fresh analysis in light of evidence provided by the complainant, the Barcelona Court of Appeal confirmed the novelty of Calcium Atorvastatin, as it had done in earlier judgments of 2007 and 2008. In addition, this is the first judgment in which the Court confirmed the inventive activity of this product. For its analysis the Court relied heavily on the expert opinions filed by both parties and on a technical opinion issued by the EPO under Article 25 of the EPC. This opinion confirmed the novelty and the inventive activity of the patent. The Court did reject the appeal filed by the patentee against the part of a first instance judgment that revoked several claims of a formulation pate [...]
Virgin Atlantic Airways, Court of Appeal Civil Division (Court of Appeal Civil Division), 22 October 2009
- By Robert Burrows,
for Kluwer IP Cases
The Court of Appeal has overturned a decision of the High Court in finding Virgin’s patent for an aircraft seating system to be valid and infringed. The Court of Appeal’s judgment is of particular interest as it concerns the skilled person and general principles of claim construction. According to the Court of Appeal, the skilled person would: a) understand that reference numbers to drawings in claims should not be used to limit the claim; b) understand that the pre-characterising portion of a claim would be expected to describe the prior art; and c) upon seeing a reference to the patent being a divisional of a parent application would say ‘what’s a parent application?’ and would go on t [...]
Neutrokine/HUMAN GENOME SCIENCES, European Patent Office (EPO Board of Appeal), 21 October 2009
- By Bart van Weezenbeek,
for Kluwer IP Cases
In case of parallel proceedings before a national court and the Boards of Appeal, parties should inform both tribunals of this position as early as possible. In order to avoid duplication of proceedings, the parties should ask the appropriate tribunal for acceleration. Whether acceleration is requested by one party, or both or all parties in agreement, or by a national court, all parties must accept a strict procedural framework, including short time limits. Acceleration can have no effect on the equal treatment of all parties and cannot confer any advantage on any one party. An objection of lack of industrial application (Article 57 EPC) requires the same standard of proof as an objection o [...]
Merck v. Teva, Commercial Court Antwerp (Rechtbank van Koophandel te Antwerpen), 20 October 2009
The Antwerp Commercial Court dismissed Merck’s claim for injunctive relief against Teva, ruling that Teva’s montelukast-based generic medicines do not infringe Merck’s European patent (EP 0 737 186) with respect to an improved process for preparation of the active ingredient montelukast, either literally or by equivalents.
The full text and summary of this case will be posted on http://www.KluwerIPCases.com
[...]Calcium Atorvastatin I, Commercial Court n.4 of Barcelona (Juzgado de lo Mercantil n.4 Barcelona), 19 October 2009
The Commercial Court Number 4 of Barcelona found that although obtaining the price for generic versions of Calcium Atorvastatin by two Spanish companies from the Ministry of Health is not an act of infringement as such, the acts carried out by the defendants constituted a threat of infringement that justified a prohibition to enter the market. The Court also ordered the judgment to be notified to the Ministry of Health so that the Ministry is aware of the prohibition when it draws up the list of medicaments to be included in the price reference system in 2010. The Court rejected the nullity counter-claim filed by the defendants, as it concluded that the obtainment of Calcium Atorvastatin wou [...]
Generics v. Synaptech, Court of Appeal Civil Division (Court of Appeal Civil Division), 16 October 2009
- By Robert Burrows,
for Kluwer IP Cases
In view of the need for a consistent approach to interpretation of Council Regulation (EEC) 1768/92, the Court of Appeal has referred to the European Court of Justice (ECJ) questions on the meaning of the term ‘the first authorisation to place the product on the market’ in Article 13(1); in particular whether the first authorisation must be issued in accordance with Council Directive 65/65/EEC (now replaced with Directive 2001/83/EC). The answer to this question will determine the correct expiry date of SPC/GB00/033. In making this referral, the Court of Appeal requested that the ECJ join this reference with the reference pending in Synthon v. Merz ([2009] EUECJ C-195/09).
The full text [...]
