Doctrine of Equivalents and File Wrapper Estoppel in France
The Tribunal de Grande Instance of Paris in its 28 May 2010 decision, Institut Pasteur v Société Siemens Healthcare Diagnostics, illustrates the specificity of the French doctrine of equivalents, rejecting the “file wrapper estoppel” theory as it is known in the US. However, since it applies the doctrine of equivalents although the function of the claimed means is not novel, this decision does not seem to be in line with the majority of decisions rendered on that item.
EPO and US Supreme Court aligned!
The Supreme Court of the United States issued an opinion on appeal (as Bilski v. Kappos) that affirmed the judgment of the CAFC of affirming the rejection of the patent, but revised many aspects of the CAFC’s decision. In their decision, handed down on June 28, 2010, the Supreme Court rejected the machine-or-transformation test as the sole test of process patent eligibility based on an interpretation of the language of 35 USC § 101.
Reading the opinion and listing to US law insiders, it appears that there is the opinion that the Supreme Court of the United States does not favour one test or rule to be the only one decisive test to 35 USC $ 101 since this one test may not be suitable for fut [...]
The Italian Supreme Court on the limits of pharmacy exception
By a decision of 20 May 2009, the Italian Supreme Court clarified the limits of the so called pharmacy exception contemplated by Italian patent law, according to which the extemporaneous preparation by the pharmacist of units of a drug, based on a medical prescription, using a patented active substance, does not result in patent infringement. In the specific case, two pharmacists had been inter alia criminally charged of the offence foreseen by the then in force Art. 88 of the Italian patent law – according to which the sale of products which infringe upon a patent may also result in a criminal offence (Art. 88 of the Italian patent law was abrogated, but an almost identical provision is n [...]
Another decision on SPCs for combination products
The torrent of UK cases concerning applications for supplementary protection certificates (SPCs) shows no sign of abating. Following the reference from the Court of Appeal in June to the CJEU in Medeva’s SPC Applications regarding the scope of the SPC Regulation (see previous post), the issue of SPCs for combination products has arisen again in Yeda’s SPC Applications.
Yeda’s patent EP (UK) 0 667 165 B1 was filed in 1989 and claimed a therapeutic composition comprising a monoclonal antibody and an anti-neoplastic agent. The patent was previously the subject of an entitlement dispute which was ultimately decided by the House of Lords (see Yeda v. Rhone-Poulenc). A Marketing Authorizatio [...]
AstraZeneca, General Court EU, 1 July 2010
The General Court upheld, for the most part, the decision of the European Commission in AstraZeneca. The Court held that AstraZeneca infringed Article 82 EC (prohibition of abuse of a dominant market position) in so far as AstraZeneca requested the registration of Losec capsules market authorisations in Norway and Denmark.
The Court further held that the possession of intellectual property rights can create, in certain circumstances, a dominant position, especially when enabling an undertaking to prevent effective competition on the market.
Click here for the full text of this case. A summary of this case will be posted on http://www.KluwerIPCases.com.
[...]Olanzapine, Court of Appeal Barcelona (Audiencia Provincial Barcelona), 28 June 2010
In appeal proceedings against a granted ex parte injunction, the Court of Appeal considered that the test whether there is an imminent threat of infringement must be based on objective criteria.. There is an objective threat of infringement if the defendant obtained a marketing authorisation and a price. The Court considered the conditional intention not to launch, expressed by the defendant prior to litigation, too vague and possibly subject to change and therefore insufficient to prove that there was not an imminent threat.
Click here for the full text of this case. A summary of this case will be posted on http://www.KluwerIPCases.com.
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