Amlodipina II, Court of Appeal Barcelona (Audiencia Provincial Barcelona), 24 February 2010
The Barcelona Court of Appeal found that the process used by the defendants to obtain amlodipine was not equivalent to the process protected by the patent in suit. The Court relied on the three Catnic questions test, applied by the English Courts until 2004, to come to this conclusion that the patent was not infringed by equivalence.
Click here for the full text of this case. A summary of this case will be posted on http://www.KluwerIPCases.com.
[...]Dosage Regimen, European Patent Office (EPO Enlarged Board of Appeal), 19 February 2010
- By Bart van Weezenbeek,
for Kluwer IP Cases
The Enlarged Board of Appeal answers three questions of law as follows:
Question 1: Where it is already known to use a medicament to treat an illness, Article 54(5) EPC does not exclude that this medicament be patented for use in a different treatment by therapy of the same illness.
Question 2: Such patenting is also not excluded where a dosage regime is the only feature claimed which is not comprised in the state of the art.
Question 3: Where the subject-matter of a claim is rendered novel only by a new therapeutic use of a medicament, such claim may no longer have the format of a so called Swiss-type claim as instituted by decision G 5/83. This type of claim has been ruled forbidden in the [...]
Language of the proceedings, European Patent Office (EPO Enlarged Board of Appeal), 16 Februari 2010
The Enlarged Board of Appeal in reply to three questions of law submitted to it, concludes as follows: Question 1: When an international application is filed and published under the PCT in an official language of the EPO, it is not possible upon entry into the regional phase to file a translation of the application in one of the other two languages. Question 2: The bodies of the EPO cannot use in written proceedings of a European patent application or of the regional phase of an international patent application an official language of the EPO other than the one used in the procedure of the application upon applying Article 14(3) EPC. Question 3: This question lacks purpose.
Click here for th [...]
Treatment by surgery, European Patent Office (EPO Enlarged Board of Appeal), 15 February 2010
- By Lars de Haas,
for Kluwer IP Cases
1. The Enlarged Board of Appeal considered the meaning that is to be given to the exclusion of patents on methods for ‘treatment by surgery’ (Article 53(c) EPC). The current construction used by the boards and the EPO as any non-significant intervention on the structure of an organism by conservative procedures was found to be overly broad. It was left for the future to define new criteria. The enlarged board only gave directions and it held that in the context of the case at bar the claimed method was excluded because it encompassed a substantial physical intervention on the body which requires professional medical expertise to be carried out and which entails a substantial health risk [...]
Eli Lilly v. HGS (Court of Appeal), Court of Appeal Civil Division (Court of Appeal Civil Division), 09 February 2010
- By Sam Tuxford,
for Kluwer IP Cases
The Court of Appeal upheld the High Court’s judgment that HGS’ patent relating to a new protein called Neutrokine-α was invalid for lack of industrial application. The Court of Appeal agreed with the High Court’s determination that uses for Neutrokine-α disclosed in the patent were not plausible at the time the patent was filed as it would have been necessary to perform a research program to ascertain which, if any, of the proposed uses were real. The Court of Appeal reached a different decision to the Technical Board of Appeal of the EPO who found HGS’ patent to be valid. The Court of Appeal explained that this was in part due to new evidence which had been submitted in the EPO appeal whi [...]
