There have been some interesting developments lately on the international IP piracy front relating to the so-called manufacturing fiction and the Anti-Counterfeiting Trade Agreement (ACTA). These will also have an impact on patent cases. I will summarize the main points.
During the past 9 months in Denmark, the pharmaceuticals manufacturer and patentee, H. Lundbeck A/S, has obtained two interlocutory injunctions in Denmark against wholesalers marketing generic versions of Escitalopram. In both cases H. Lundbeck A/S argued successfully that the patent-in-suit fulfilled the conditions of the Danish Patents Act § 64a (similar to the Art 35…
The District Court of The Hague granted Mundipharma a provisional injunction against Sandoz for infringement of its patent for a controlled release oxycodon formulation. The District Court suspended its decision on the validity and infringement of the patent in the main action until a final decision has been rendered in the opposition proceedings. The Court…
A second medical use claim can be based on a novel dosage regimen. In decision T317/95 a Board of Appeal decided that this type of claim was not allowable. It regarded the activity of administrating a medicine as a therapeutic treatment and, hence, an activity in a field excluded from patentability. Since the patent right…
In the beginning of 2010, Merck Sharp & Dohme (hereafter “Merck”) and E.I. Du Pont de Nemours (hereafter “Du Pont”) on the one hand and Mylan on the other hand entailed in a fight concerning the launch of a generic version of Cozaar Plus®. The Supplementary Protection Certificate (SPC) of Cozaar Plus®, a combination product consisting of losartan and HCTZ, would expire on 15 February 2010, but Merck and Du Pont tried to prevent the marketing of generic versions of Cozaar Plus® by invoking the SPC for Cozaar®, the monoproduct consisting of Losartan only. In Belgium and France, this case led to very diverging judgments on the interpretation of the SPC Regulation.
Where do you come from?
Aaaaaha. Where again is it?
The Austrian Supreme Court decided that a patent owner is free to base an infringement action on a limited version of its claims, irrespectively of initiating formal limitation proceedings. An application for cost reimbursement by the Main Association of the Austrian Social Insurance Institutions, which contained a declaration of the price and the availability of…
One of the most disputed topics within the patent community is whether or not the patent prosecution history should be taken into account when interpreting the scope of protection of the claims. Whereas U.S. Courts have traditionally accepted the so-called “file-wrapper estoppel” or “patent prosecution estoppel” defence, the answer on this side of the Atlantic…
The English Court of Appeal dismissed Novartis’ appeal against the finding of the Patents Court that Novartis’ patent for a sustained release formulation of fluvastatin was invalid for obviousness. The case was unusual because, at first instance, Warren J. had held the patent to be inventive on a conventional analysis but then went on to find it obvious using an acontextual approach. The Court of Appeal discussed the correct approach to the question of obviousness in English law, by reference to both the problem and solution approach developed by the European Patent Office and the established four-step approach developed by the English Courts in Windsurfing v Tabur Marine and Pozzoli v BDMO .
According to the Advocate General Article 9 of the Biotechnology Directive does not limit the scope of protection of patents for biotechnology inventions. Nonetheless protection for DNA sequences as such is excluded.
In its decision rendered on 19 March 2008 the District Court of The Hague referred questions to the European Court of Justice on the interpretation of article 9 of Directive 98/44/EC 0f the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (“Biotechnology Directive”). In particular the Dutch court wished to know whether article 9 of the Biotechnology Directive should be interpreted as extending the rights conferred by a patent covering a biotechnological invention, or, on the contrary, whether it should be interpreted to limit the proprietor’s right to prevent the exploitation of material containing the patented product (DNA sequence), on the condition that such product still performs its function. The Advocate General in his opinion comes to the conclusion that it is irrefutable that article 9 of the Biotechnology Directive is a rule for the extension of patent protection. However, in his opinion the system put in place by the Biotechnology Directive excludes protection for DNA sequences as such. Such protection is limited “to the situations in which the genetic information is currently performing the functions described in the patent.” But how does this relate to the obligations under the European Patent Convention (EPC)?