Who’s the skilled sausage-maker? It’s a team, decrees Germany’s Federal Court of Justice
As in other jurisdictions, German Courts try to determine whether an invention is patentable over the prior art by looking at it through the eyes of the notional skilled person at the effective filing date of the patent at issue. In a decision pronounced on March 6, 2012 (docket X ZR 78/09), the German Federal Court of Justice (Bundesgerichtshof) refined its case law on the definition of the skilled person, this time on a case to do with sausage making.
The case concerned a process for manufacturing meat products such as sausages, by stuffing a certain type of tubular casing which is delivered to the stuffing plant on a roll. The casing is called reel stock.
The use of reel stock in the prio [...]
Gedeon Richter plc v Bayer Schering Pharma AG [2012] EWCA Civ 235
Last April we reported the case of Gedeon Richter plc v Bayer Schering Pharma AG [2011] EWHC 583 (Pat), concerning immediate release formulations of a combination contraceptive product containing the steroidal hormones drospirenone and ethinylestradiol. We can now report the decision of the Court of Appeal in this case (handed down on 7 March 2012) where the court has clarified the test to be applied when evaluating patent amendment on the grounds of added subject matter. The court has also given guidance on the test for obviousness in circumstances where it is argued that the invention covered by the patent would have been “obvious to try”.
But first, a quick recap of the facts of the c [...]
Why The Ides Of March 2013 Will Be Important Around The World
The “first-to-file” provisions of the United States “America Invents Act (AIA)” take effect on March 16, 2013. Because of other changes to the U.S. patent system, this date will be just as important to patent applications being filed around the world as it will be to those being filed in the United States. Here, I highlight several reasons why global patent applicants—and their patent counsel—should be aware of the significance of March 15, 2013—the Ides of March.
A Global View Of “Effective Filing Date”
The AIA amends 35 USC § 100 to add a new definition of “effective filing date.” Although the statutory language is complicated, it embodies the familiar concept of [...]
Pharmaq AS v. Intervet International B.V., Court of Appeal, (Borgarting Appelate Court) 22 December 2011
The Court of Appeal dismissed Pharmaq’s claim that Intervet’s patent claiming deposited virus strains and closely related strains sharing genotypic and phenotypic characteristics was invalid and that its vaccine did not infringe. The court held that the patent only covered the virus in isolated form and that the isolation of the virus strain from nature involved an inventive step. The court further held that the strain used in Pharmaq’s vaccine shared the genotypic and phenotypic characteristics which were used in the description to characterize the patented virus strain. As the court did not find any other relevant characteristics, or differences in characteristics between Pharmaq’s strain [...]
Inventive step of a stereoselective glycosylation process
Gemcitabine is part of the family of nucleosides which are compounds constituted of two chemical parts: a sugar bound to a nucleobase through a glycosidic bond. As any nucleoside can have two isomers (the alpha-anomer and the beta-anomer) depending on the orientation in space of the glycosidic bond, it must be clarified that Gemcitabine is a nucleoside of the beta-anomer type where the nucleobase is situated above the sugar part. This beta-anomer constitutes Gemcitabine and presents a therapeutic effect whereas the alpha-anomer, where the nucleobase is situated below the sugar part, has no therapeutic effect.
Gemcitabine is used as an antiviral and antineoplastic medicine and marketed in F [...]
Is it obvious how to apply “obvious to try”?
Although a number of issues were raised as to the validity of two patents in the recent Omnipharm v Merial[2001] EWHC 3393 (Pat) case, the most interesting feature of the case was the judge’s approach to the question of inventive step. The case focussed in particular on the role of the doctrine of “obvious to try”, which over the years has become a feature of the English patent landscape. The leading authority on “obvious to try” had for many years been the Court of Appeal judgment in Johns-Manville Corporations’ Patent[1967], in which Diplock LJ characterised a successful “obvious to try” attack as follows: “it is enough that the person versed in the art would assess the l [...]
