The Supreme Court held that claiming priority of an earlier application requires a direct and unambiguous disclosure in the priority document of all features of the technical teaching as defined in the claims. If the claimed invention is characterized by a particular property of one of its components that has not (clearly) been disclosed in the priority document, and that permits a person of ordinary skill to make a deliberate selection out of a range of different embodiments (here: insensitivity to UV light), the priority document lacks a clear and unambiguous disclosure of the invention.
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On 15 January 2013, the French Cour de cassation, in the litigation between the Novartis companies and the Actavis companies about valsartan, drew the consequences of the 9 February 2012 order rendered by the CJEU in the frame of a parallel litigation in the United Kingdom.
As already explained in a previous post, the company governed by the laws of Switzerland, Novartis AG, was granted European patent EP 0 443 983 relating to “acyl compounds”, including valsartan, and, after its expiry, a supplementary protection certificate (SPC) No. 97C0050 which was in turn the subject of a pediatric extension expiring on 13 November 2011.
The company governed by the laws of France, Novartis Pharm [...]
The Helsinki Court of Appeal granted Lundbeck preliminary relief against Sandoz. The Court held in the light of Article 34 TRIPS that in preliminary relief cases the standard of proof of infringement may not be too high if the patent in suit is a process patent for the manufacture of a new product, and therefore concluded that Sandoz’ generic escitalopram products were likely to infringe Lundbeck’s supplementary protection certificate based on Lundbeck’s patent.
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[...]The Helsinki Court of Appeal found that ratiopharm had infringed Merck’s supplementary protection certificate covering losartan. The Court applied the reversed burden of proof of the Patents Act, which has its basis on Article 34 of the TRIPS Agreement. It further considered that, in the absence of proof to the contrary, the active ingredient losartan in ratiopharm’s Losatrix- and Losatrix Comp -products was deemed to have been produced using a manufacturing process within the scope of Merck’s patent.
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[...]The Federal Court of Justice held that the meaning of a patent claim as a whole and the contribution of the single features to the result of the invention must be assessed in nullity proceedings. It is not permitted to attribute a certain meaning to the claim to only avoid an issue of undue broadening. The Court specifically held that the claim interpretation may only be derived from the patent as granted. A comparison with the original application may only be made for other purposes, such as the assessment of an undue broadening, or the clarification of contradictions between the claim wording and the specification if the claim has been limited in opposition proceedings.
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In the assessment of inventive step, the question whether the prior art discloses a pointer for the skilled person to use the measures described therein, and to apply these to a known substance, could be relevant. It should be investigated whether the measures from the prior art gave rise to the expectation that the solution of the technical problem to be solved could be expected.
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