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Hospira clears the way for generic Herceptin

The development of Herceptin (trastuzumab) in the late 1980s and 1990s is one of the most remarkable advances in the treatment of breast cancer. The story of the drug and its pioneer, the “velvet jackhammer”, Dennis Slamon, is neatly summarised in Siddhartha Mukherjee’s award winning novel: “The Emperor of All Maladies – a Biography of Cancer” – a fascinating if not necessarily uplifting read.

In short, unlike traditional chemotherapy, trastuzumab is a monoclonal antibody which specifically targets a receptor known as HER-2 which is involved in the development of breast cancer. No-one disputes that the development of Herceptin was a landmark advance in the field of oncology – [...]

Dipeptidyl-Peptidase-Inhibitoren, Federal Court of Justice Germany, 11 September 2013

a) The applicant is not obliged to limit the protective scope to explicitly described embodiments, but may make certain generalisations to cover the entire invention.

b) Whether a claim containing generalisations is enabled depends on whether the protective scope extends beyond the most generalized teaching solving the underlying problem.

c) Functionally describing a group of compounds is not precluded by the fact that such wording encompasses not only compounds already known in the art or disclosed in the specification, but also compounds that may be provided in the future; even if their provision requires inventive activity.

The full summary of this case has been published on Kluwer IP Law [...]

Hospira v. Novartis, Court of Appeal of England and Wales, 19 December 2013 ”

The Court of Appeal upheld the judgment of the High Court (Arnold J) that claims concerning treatment of osteoporosis with zoledronic acid were not entitled to an earlier priority date and were therefore invalid over an intervening publication. The Court held that the disclosure in the priority document was either too general or too specific, and therefore did not support a claim to the use of zoledronic acid administered intravenously about once a year to treat osteoporosis with a dose of 2-10mg.

The full summary of this case has been published on Kluwer IP Law.

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The wording of Prayers for Relief: A complicated Swiss affair

The wording of prayers for relief in patent infringement proceedings remains a hotly debated issue in Switzerland. In a landmark decision dated 2004 (BGE 131 III 70) the Swiss Federal Supreme Court ruled that the patent infringing goods or procedures had to be exactly described in the prayers of relief of a cease-and-desist order. Since then, it has not been sufficient to simply repeat the wording of the claim of the allegedly infringed patent. In particular, this holds true if the interpretation of the claim features is highly controversial between the parties. The authorities that are in charge of the enforcement of an injunction cannot be expected to reassess the meaning of the patent cla [...]

Moving the SPC Goal Posts or a Necessary Amendment?

It is hard to think of a recent SPC case before the UK courts where the judge has not had to refer questions to the CJEU in order to either clarify the terms of the SPC Regulation or the CJEU’s earlier interpretations.  This necessity has arisen at an early stage in an action between Actavis and Boehringer Ingelheim before the High Court of England & Wales ([2013] EWHC 2927 (Pat)) concerning the validity of an SPC for a combination product.

Boehringer Ingelheim were the proprietors of EP (UK) 0,502,314 which expired on 30 January 2012. Claim 5 of this patent was said to protect the active ingredient Telmisartan (used for the treatment of hypertension). This is the active ingredient in Bo [...]

Smart Card Patents that were not so Smart

and Carissa Kendall-Palmer

In HTC Corporation v Gemalto SA and HTC Corporation v Gemalto NV [2013] EWHC 1876 (Pat), Mr Justice Birss ruled upon the validity and infringement of two telecommunications patents concerning smart/chip card technology. The Claimant came to the High Court of England and Wales seeking revocation of the patents; the Defendant counterclaimed for infringement.

The 865 patent

The 865 patent, entitled ‘Using a High Level Programming Language with a Microcontroller’, was said to relate to using a high level programming language with a smart card or microcontroller. Gemalto contended that claims 1, 3, 8, 9, 15 and 18 were independently valid, and save for claim 9, they [...]

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