In most systems, a patent is valid for 20 years from the filing date of the patent application. Patents are granted with a presumption of validity but no patent is safe from being challenged and declared (partially) invalid by national courts or, in the case of European patents, revoked by the European Patent Office. Often, a claim of invalidity of a patent is a reaction to an action of the patentee, in particular an infringement action.
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…
In Denmark, a patentee may opt to apply for a utility model registration in addition to a patent, provided that the conditions for the grant of both rights are fulfilled. One of the strategic advantages of applying for both rights in Denmark is that the utility model registration is not subject to as thorough a…
Who may bring an action for patent revocation? Such is the fundamental question which has been submitted to the Tribunal de Grande Instance of Paris in a case whose factual circumstances made it very interesting. On 13 September 2010, Omnipharm Limited served a summons on Merial to appear before the Tribunal de Grande Instance of Paris to…
By decision of 14 January 2011, the Court of Turin tackled the issue of the patentability of the intermediate, i.e. the chemical product which represents an obligatory passage of the process of synthesis and the structure of which is successively modified to obtain the wanted substance. The case involved Bayer Schering Pharma against Industriale Chimica…
Imagine: Wouldn’t it be fantastic to have one single patent which you could apply for at the WPO, the World Patent Office? A World Patent, which would be valid worldwide and which could be enforced in each single country of the world with worldwide effect? Decisions of the national local chambers of the World Patent…
In a very recently published decision of 4 March 2011 the Swiss Federal Supreme Court dealt with the decision of the Enlarged Board of Appeal 2/08 and approved a dosage regime for a pharmaceutical product as patentable subject matter of a Swiss type claim under the EPC 1973. According to the Supreme Court such claim…
In the recent case of Merck v Teva (decision of 8 April [2011] EWCA Civ 382), the English Court of Appeal confirmed that when considering the question of inventive step in light of prior art, it did not matter that the prior art was published only a few days before the priority date of a…
After the Federal Court of Justice (Bundesgerichtshof, BGH) had confirmed the validity of the German SPC for the enantiomeric escitalopram (and its underlying patent) in 2009, the Federal Patent Court (Bundespatentgericht) now confirmed in further nullity proceedings the validity of the SPC.
As previously discussed, the English Court of Appeal has clearly stated its support for judicial collaboration facilitating de facto harmonisation of patent law in Europe (Grimme Landmaschinenfabrik GmbH v Scott [2010] EWCA Civ 1110). However, in a recent decision in the English Patents Court (Lundbeck v Norpharma and Infosint [2011] EWHC 907), Floyd J. expressed…
By final judgment of November 18, 2010 (Xa ZR 149/07, published in Mitt. 2011, 66 (in German only)), the German Federal Court of Justice (FCJ) decided on two interesting issues in nullity appeal proceedings regarding the German patent DE 101 41 650 pertaining to a patch containing the opioid fentanyl, a strong analgesic drug. Firstly,…
