Combination products (containing two or more active ingredients) raise difficult questions with respect to supplementary protection certificates (SPCs). Can a SPC be based on the market authorisation (MA) of a combination product, if the patent only covers one active ingredient? On 13 July 2011, the Advocate General at the CJEU delivered her Opinion on the…

This is to report on a new tendency in the jurisdiction of the Federal Patent Court to use the prerequisite of enabling disclosure (Art. 83 EPC) as an unpredictable rule of reason for patentability. Based on a Federal Supreme Court decision of 2001 (“Taxol”), it had been established case law in Germany that a patentee…

During EPO opposition proceedings, patentees have historically been able to avoid discussing clarity by combining granted claims rather than using the description as basis for amendments. The landmark cases T 227/88 and especially T 367/96 have been relied on to support this position. However, some technical boards of appeal are now starting to engage in…

The Court, in infringement proceedings brought by Novartis against Actavis for marketing generic Valsartan, held that the assessment of infringement had to be made as of the time of infringement, not as of the priority date. This is the first decision in years in Norway taking a position on this issue. The judgement also deals…

The Borgarting Court of Appeal overturned the district court decision which revoked the patents in suit for lack of inventive step. The Court held that even if oxycodone had been known and used to treat pain as an alternative to morphine, the skilled person could not have predicted that a controlled release formulation with oxycodone…

AstraZeneca enforced its patent for an asymmetrical synthetic route to obtain esomeprazole in Denmark. The API manufacturer of the allegedly infringing pharmaceutical had developed its own- independent synthetic route with a significantly lower yield and had applied for a European patent for that process. AstraZenaca alleged that the detection of trace amounts (ppb) of certain…

The decision of the Board of Appeal of the European Patent Office which revokes a European patent due to lack of inventive step, is a supra-national legal instrument which can be the object of a complaint to the German Constitutional Court. Such complaints are only admissible if the protection of fundamental rights is no longer…