A case of anticipation

Mr Justice Kitchin gave his ruling yesterday on an application for interim injunctive relief in the Patents Court for England and Wales in Les Laboratoires Servier v KRKA Polska sp Zoo (picked up for far by subscription service Lawtel but not by LexisNexis Butterworths).

Servier developed a drug, the active ingredient of which was perindopril, and patented both perindopril erbumine in the alpha crystalline form and its method of preparation. This drug was supplied under the trade mark COVERSYL. Servier spotted that KRKA had obtained marketing authorisation for generic perindopril in the UK. Having previously analysed KRKA's generic perindopril which was sold elsewhere, Servier concluded that it contained an alpha crystalline form of perindopril that infringed its patent and brought infringement proceedings. KRKA, seeking summary judgment, said the patent was invalid for lack of novelty or obviousness, being anticipated by an earlier Servier patent or by the sale of COVERSYL tablets before the priority date of the disputed patent. Servier sought interim injunctive relief, arguing that there was a real risk that, if KRKA was allowed to sell its generic product, Servier would suffer severe and unjustified losses due to the downward spiral in the price of the drug.

Kitchin J granted interim injunctive relief. In his view

* there was a serious issue to be tried on the question of patent infringement.

* there was also a clear conflict of evidence on the issues of anticipation and obviousness, which had to be determined at trial.

* although KRKA had established that COVERSYL containing an alpha crystalline form of perindopril had indeed been sold by Servier before the priority date of the disputed patent, KRKA had not shown that Servier had no prospect of defending the patent in the face of this challenge. The summary judgment application was accordingly dismissed.

* there was a real risk that, if Servier was not granted an injunction, other generic manufacturers would launch their generic perindopril by the time judgment in the action was given.

* there was also a substantial risk that Servier would suffer severe damage through price erosion, which would continue after trial.

* COVERSYL was crucial to Servier's business, while KRKA produced many different generic products.

* KRKA had not yet launched its product and had not issued revocation proceedings, even though it had been preparing to launch the product for some time.

* on the balance of convenience it was therefore right to grant the injunctive relief sought.
The IPKat is a little curious about the summary judgment point, since there aren't many ways for a pharma company to defend a patent once it's proved that the marketed product was made available to the public before the patent's priority date. Still, he will keep an open mind and he looks forward to seeing what happens at trial. Merpel adds, in the balance between IP monopoly and free competition the odds often seem to be stacked so strongly in favour of the generic companies these days that one wonders if the original drug companies aren't on their way to achieving 'protected species' status.

More on Coversyl here
Ways to lower your blood pressure here

Today's CFI rulings

The Court of First Instance of the European Communities has come up with three decisions on appeal from the Office for Harmonisation in the Internal Market (OHIM) involving Community trade marks. None has been posted in English. The IPKat continues to deprecate the non-availability of English-language versions of decisions from the ECJ and CFI and fervently wishes that the European Commission would address this issue decisively now.

Left: a linguistically talented cat catching up on his reading of untranslated CFI decisions

* Case T-188/04 Freixenet v OHIM . The CFI has annulled the refusal of OHIM to register in Class 33 a frosted black matt bottle. Alas, they've annulled it in French. Can some kind French-speaking person tell the IPKat what happened by posting a comment below?

* Case T-190/04 Freixenet v OHIM . As above, but this bottle was white and polished, not black and frosted. Can anyone tell the IPKat if OHIM's decision was annulled on the same grounds as Case T-188/04 above?

* Case T-96/05 Monte di Massima v OHIM - Höfferle Internationale (Valle della Luna): The CFI rejected this appeal against the Board of Appeal's decision to set aside the Opposition Division's decision to refuse the opposition brought by the owner of the national word mark VALLE DE LA LUNA for sparkling wines against an applicant to register a figurative mark containing the words "Valle della Luna" for beers. If there's any issue of legal significance, can someone please put this monolingual moggie out of his misery and tell him?

Cat language here (note: cats form the largest linguistic group in the European Union, but case law is never translated into cat language).

1 comment:

  1. Re ECJ judgments, desperate times lead to desperate measures, and I've just enrolled on an A-level French course, solely for the purposes of getting better access to case law. However, as a TM attorney, I mustn’t forget that it’s worse for patent attorneys, who need to sit a paper that requires a knowledge of technical French or German, in order to practice before the EPO.


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