No, not really. The movie didn’t drop to the level that the mind wandered off to patent litigation. That would have been equivalent to a one star review (actually, literally, it’s three out of five). But, in retrospect and applying Tenet’s unintelligible philosophy, the Court of Appeal (‘CoA’) inverted the District Court’s almost – from a European-wide perspective – one-off pemetrexed decision.
No spoilers ahead, as it will be known by now that the CoA – end October – held that Fresenius with its pemetrexed diacid product infringed Eli Lilly’s patent claiming pemetrexed disodium. Not literally, but by equivalence. In doing so, the CoA seemed to have walked a middle ground between the UK and continental (equivalence) doctrines, possibly with a bit more footing on the latter.
So, as much has been spoiled already, let’s keep it to the observation that the CoA tried to – and, to add, quite clearly – set out the Dutch position on equivalence. Not to waste this space on a summary of main points of the CoA’s equivalence approach, let’s just refer to – detached from the facts of the case, and delving into the meat of the matter – paragraphs 4.1 – 4.11 of attached English translation of the CoA’s judgment (machine style, as a disclaimer to errors to be encountered; the original Dutch version can be found here).
What will be interesting to see is how – over the years to come – the Dutch courts will apply the CoA’s teaching. As always – and that’s the beauty of patent litigation – there will be rhythm, but will it move to the UK, the ‘continent’, or remain in some Dutch equivalence equilibrium? Or – in simple terms – will it be inverted, again?