Life Sciences patent litigation in the UK – a summary of calendar year 2009

02 March 2010

Trevor Cook

2009 was an exceptionally active year in the English Patents Court, and this is reflected in the large number of cases at first instance in the life sciences sector concerning patent infringement and/or validity and in which judgment was given.  Five out of the twelve patents whose validity was attacked (another was not challenged as it had previously survived such attack in other proceedings) survived such challenge.  Allegations of infringement succeeded in four out of the eight cases where this was in issue.  However, in no case where both validity and infringement were in issue was the patent found both valid and infringed, with the result that in only three cases, where one or the other was not in issue, can the patentee have been said to have succeeded.



















































































































DatePartiesSubject MatterJudgeInfringed?Valid?
09/01/09 Corevalve Inc v Edwards Lifesciences AG and anr

Artificial heart valve

EP 0 592 410  

Prescott QCNoYes
16/01/09Actavis UK  Ltd v Novartis AG

Sustained release fluvastatin formulation

EP 0 948 320

Warren JNA

No – All claims as to which independent validity asserted obvious

(Upheld on appeal in 2010) 

23/01/09Laboratoires Almirall SA v Boehringer Ingelheim International GmbH

Combination aclidinium and B2 agonists

EP 1 651 270

GB 2 419 819

HHJ FyshNANo x 2 – All claims  obvious,  claim 20 of 819 invalid as method of medical treatment
12/02/09

Ratiopharm (UK) Ltd v Alza Corp and anr;

Alza Corp and anr v Sandoz Ltd


Transdermal patches for administering fentanyl

EP 1 381 352

Kitchin JYesNo - All claims anticipated (which could have been overcome by amendment) and obvious
03/03/09Novartis AG v Dexcel-Pharma

Cyclosporin Formulation

GB 2 222 770[1]

Arnold JYesNA
27/03/09Scinopharm Taiwan Ltd v Eli Lilly & Co

Gemcitabine Process

EP 0 577 303

Kitchin JNAYes
01/05/09Wake Forest University and ors v Smith & Nephew plc and anr

Apparatus for promoting wound healing

EP 0 620 720

Wyand QCYes – claims 1, 2, 4, 9, 13, 15, 16, 17, and 19Partially, and subject to amendment – claims 1, 2 and 15 anticipated, claims 8, 9, 13 and 17 obvious

(All claims held invalid on appeal in 2009)

15/05/09Leo Pharma A/S and anr v Sandoz Limited

Crystalline hydrate of calcipotriol

EP 0 679 154

Floyd JConceded

Yes

(Upheld on appeal in 2009)

12/06/09Edwards Lifesciences AG v Cook Biotech Inc

Artificial Heart Valve

EP 1 255 510

Kitchin JNoNo - all claims obvious
16/06/09Tate & Lyle Technology Ltd v Roquette Freres

Use of maltotritol to control the crystal structure of maltitol

EP 0 905 138

Lewison JNANo - only claim to have survived EPO opposition anticipated and to mere discovery
10/07/09Novartis AG & anr v Johnson & Johnson Medical Limited & anr

Contact lens

EP  0 819 258

Kitchin JYes – claims 8 & 11No – all claims insufficient
29/07/09Zeno Corporation & ors v BSM-Bionic Solutions Management GmBH & anr

Medical device

EP 1 231 875

Lewison JNoYes
31/07/09Occlutech GmbH v AGA Medical Corp & anrMedical deviceMann JNoYes
28/08/09Mölnlycke Health Care AB v Wake Forest University and anr

Apparatus for promoting wound healing

EP 0 620 720[2]

Kitchin JNANo – obvious, and protection extended
20/11/09Teva v Merck

Ophthalmic formulations of timolol and dorzolamide for the treatment of glaucoma

EP 0 509 752

Floyd JNANo - obvious






[1] Previously in issue in Novartis AG v Ivax Pharmaceuticals UK Ltd [2006] EWHC 2506, [2007] EWCA Civ 971.
[2] Previously in issue in Wake Forest University and ors v Smith & Nephew plc and anr [2009] EWHC 908, [2009] EWCA Civ 848

 

Three out of the six life sciences decisions of the English Patents Court in 2008 (see Life Sciences Update March 2009) were the subject of appeals in 2009, and the other two appeals were from two of the first instance decisions in 2009 listed above:


 













































DatePartiesSubject matterJudge Upheld?Infringed?Valid?

01/04/09

Napp Pharmaceutical Holdings Ltd v Ratiopharm GmbH

Napp Pharmaceutical Holdings Ltd v Sandoz Ltd

Pharmaceutical formulation –Oxycodone

EP 0722730 B

EP 1258246 B


No


Yes x 2, reversing judge


Yes x 2

02/07/09Generics (UK) Ltd v Daiichi Pharmaceutical Company & anrPharmaceutical – Levofloxacin

EP 0206283  & SPC

YesNAYes
31//07/09Wake Forest University and ors v Smith & Nephew plc and anrApparatus for promoting wound healing

EP 0 620 720

Yes as to anticipation of claim 1, no as to obviousness of claims 4, 16 and 19NANo, reversing judge on obviouness
17/11/09Leo Pharma A/S and anr v Sandoz LimitedCrystalline hydrate of calcipotriol

EP 0 679 154

YesNAYes
18/12/09Dr Reddy’s Laboratories (UK) Limited v Eli Lilly & CompanyPharmaceutical – Olanzapine

EP 0 454 436 B

YesNAYes

There are no pending appeals in any of these matters to what is now the Supreme Court.