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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 [...]

Public Prior Use of a Pharmaceutical Preparation (T 2458/09)

Although more than 20 years have passed since the Enlarged Board of Appeal issued its decision G 1/92, there is still little case law which provides guidance on how to establish the structure and properties of a particular medicament in a manner so as to be able to rely on the same as a piece of prior art in opposition proceedings.

In G 1/92, the Enlarged Board rejected the notion of T 93/89 that the ingredients of a commercially available product are not made available to the public unless there is reason for experts to investigate its composition by chemical analysis, and it held that the chemical composition of a product is state of the art when the product as such is available to the pub [...]

Obvious to try attacks remain topical even if they take a different path

By Gregory Bacon and Brian Cordery

The English Patents Court (Birss J) recently demonstrated a somewhat unconventional approach to answering the statutory question of obviousness when assessing inventive step*. The judgment also provides some guidance on the role of commercial as opposed to technical considerations, in particular regulatory concerns, when assessing obviousness. Leo Pharma, the defendant in these proceedings, market a successful product in the UK under the brand Dovobet Ointment. Teva sought to revoke two patents in Leo Pharma’s name which protect the Dovobet Ointment product. Leo Pharma in turn claimed infringement of the two patents by Teva’s proposed generic versio [...]

Not accepting an undertaking entails an intention to market the allegedly infringing product

On 12 September 2014, the Barcelona Court of Appeal (Section 15) handed down a decision confirming a preliminary injunction preventing a Spanish company from marketing capsules claimed to be compatible with what is known as the Nespresso® system, which raises a handful of interesting legal points.

The first point of interest discussed was whether or not the appeal proceedings against the first instance decision which had ordered a preliminary injunction should be discontinued after the Court of First Instance (Barcelona Commercial Court number 5) handed down a judgment on the merits, upholding the infringement complaint.  After the judgment in the main proceedings came out, the complainant [...]

Is the Federal Patent Court obliged to appoint a technical expert?

by Bernward Zollner

In a recent decision of the Federal Supreme Court dated 26 August 2014 (docket-No. X ZB 19/12) a further appeal of an applicant pursuing his patent application was rejected. Already the German Patent and Trademark Office had rejected the patent application. The Appeal of the applicant against this decision had been rejected by the Federal Patent Court. Against this decision the applicant submitted a further appeal to the Federal Supreme Court arguing that the Federal Patent Court should have appointed a technical expert. The Federal Supreme Court has rejected this further appeal.

In the reasoning it is pointed out that the Technical Senate of the Federal Patent Court does [...]

The invalidity defense in Danish PI proceedings – the times are changing

The Danish Maritime & Commercial Court recently granted an interlocutory injunction in a patent dispute relating to 2nd medical use claims (Novartis v. Orifarm Generics case A-0006-14)).

The Novartis patent claim language included a specification for a TTS (transdermal therapeutic system) for administering Rivastigmine in the treatment of Alzheimers:

“Rivastigmine for use in a method of preventing, treating or delaying progression of dementia or Alzheimer’s disease,
wherein the rivastigmine is administered in a TTS and the starting dose is that of a bilayer TTS of 5 cm2 with a
loaded dose of 9 mg rivastigmine, wherein one layer: …” (highlighted by me).

When Orifarm Generics launched a TT [...]

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