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Danish Supreme Court decision on preemptory invalidity in relation to a patent application (Dupont/Danisco v. Novozymes)

We have previously reported (post 28 August 2012) on ongoing litigation in Denmark between DuPont/Danisco and Novozymes resulting at the time in the grant of an interlocutory injunction being firstly granted and then revoked as the patent-in-suit was subsequently invalidated.

In a more recent development, DuPont/Danisco filed suit at the Maritime & Commercial Court (MCC) claiming that Novozymes be ordered to acknowledge that a patent application, when and if ultimately granted, should be held invalid in Denmark.

Novozymes argued, principally, that the action be dismissed and in the alternative that Novozymes be aquitted. The principal plea for dismissal was then made the subject of separate [...]

Herceptin Round 2: Hospira enjoys the sweet smell of success once more

By Brian Cordery and Steven Willis

Regular readers of the Kluwer patent blog may recall that in April 2014, the English Patents Court revoked two patents relating to trastuzumab, the active ingredient in Herceptin, which is marketed outside of the US by Roche. One patent was for a dosage regimen and the other related to a composition of trastuzumab containing certain levels of impurities. The SPC for trastuzumab itself subsequently expired in July 2014, but as yet, Hospira has not launched its competing medicine in the UK. As part of its campaign to clear the way for launch, Hospira challenged two further related divisional patents – this time relating to lyophilised formulations of tra [...]

Proprietor’s Plea of Ply Patent Prevails (or: The Problem with the Problem, Part II)

by Anne Katrin Schön

On 12 June of this year, the German Federal Court of Justice (FCJ) in Karlsruhe concluded nullity appeal proceedings (X ZR 96/11) against the German part of European patent EP 1 071 556 B1 by dismissing the nullity action and upholding the patent as granted. Overruling the first-instance judgment 1 Ni 19/09 of the Federal Patent Court (FPC), with which the patent had been declared null and void in its entirety, the FCJ confirmed principles of established case law both regarding novelty and inventive step. Prior to the German nullity proceedings, the European Patent Office (EPO) had rejected an opposition against the patent. A comparison between the EPO, FPC and FCJ deci [...]

UKIPO gains new powers to revoke patents which fail a novelty or obviousness test – but only if ‘clearly invalid’

by Dr Mark A G Jones

The UK’s Intellectual Property Act 2014, enacted to implement recommendations of the 2011 Hargreaves Review of Intellectual Property, has extended the powers available to the United Kingdom Intellectual Property Office (UKIPO) to revoke British patents of its own motion. This applies both to patents granted directly by the UKIPO or patents obtained through the EPO route. The new statutory provisions are contained in Section 73 of the Patents Act 1977, as amended.

The new power, available from 1 October, 2014, allows the UKIPO to revoke a patent for lack of novelty or lack of inventive step where a third party has sought an Opinion from the UKIPO Opinions Service as to [...]

MSD v. Mylan: conflicting views

by Jan Pot and Ruprecht Hermans

MSD’s European Patent for treating baldness, EP 0 724 444 (‘EP 444’), has been the subject of a number of (in)validity decisions throughout Europe, with differing outcomes. The Dutch chapter in this saga is a decision of the District Court The Hague, which holds that – contrary to the German, French and Italian courts –the patent is valid and infringed.

Claim 1 of EP 444 is a Swiss-type claim for the use of finasteride for the preparation of a medicament for oral administration useful for the treatment of androgenic alopecia in a person and wherein the dosage amount is about 0.05 to 1.0 mg. Androgenic alopecia is a type of baldness occurring in men a [...]

Can the validity presumption in Danish PI proceedings be weakened due to lacking prosecution steps?

Since July 2013 when the Danish Maritime & Commercial Court (MCC) took over as IPR specialty court in Denmark for PI cases also, the technical judges have taken part in the adjudication of PI patent cases also. Although the MCC has no legal basis to render judgement declaring patents in the course of PI proceedings, the fact that the bench is now made up of one legal judge and two technical judges in practice means that a well-documented invalidity defence may prove fruitful, whereas the invalidity defences in the past were almost invariably turned down by the bailiff’s who presided over patent PI cases due to the court’s lack of technical insight.
In a recent case (F&H A/S v. Bodum (Skandin [...]

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