NOT SO FAST IN ZOTON PATENT CASE; LEMONADE BOTTLE APPEAL FAILS

This little curiosity cropped up in the Patents Court on 11 October but was noted on subscription service Lawtel only this morning: it's the decision of Mr Justice Pumfrey in a case management issue, Takeda Pharmaceutical and Cyanamid of Great Britain Ltd v (i) Teva UK Ltd and (ii) Sandoz Ltd and Sandoz GmbH, [2005] EWHC 2191 (Pat).

Teva and Sandoz were defendants in separate patent infringement actions brought by Takeda, who owned three patents for pharmaceutical formulations for lansoprazole (a.k.a. Zoton), and by Takeda's licensee Cyanamid. Teva and Sandoz both applied to bring forward the hearing date of a patent infringement action to a date earlier than that already fixed in the second action, the case against Sandoz. The trial of the action was scheduled to take place in April 2006, but Cyanamid notified Sandoz that it intended to apply for interim relief to take effect in December 2005, when the supplementary protection certificate for the basic active ingredient was set to expire but its own patent remained in force.

Teva argued that an earlier trial date would not prejudice Cyanamid, since substantial preparation for the trial of the same issues against Sandoz had already been made. Sandoz supported an earlier trial date since circumstances had changed since the trial date was fixed for April 2006. Given the vast sums that may be made from selling Zoton, the presence or absence of patent protection, even for a short time, gave financial justification to the defendants' pressure to bring the trial forward; the same consideration also meant that any undertakings in damages given by Takeda would be pretty colossal too.

Pumfrey J refused the application. In his view the April 2006 trial date should be left as it was, mainly because there was some doubt as to whether the action against Teva would be ready for an earlier trial. The state of the evidence was unsatisfactory and matters of some complexity could potentially be raised. The trial of the second action would be left as it was, while trial of the first action would take place in the same window already appointed for the second action.

The IPKat is always fascinated to see how judges exercise their case management powers. In this case Pumfrey J did so with some trepidation since, as he put in (para.13): "I find myself in some uncertainty as to the correct approach in this case since ... the competing considerations are both cogent and incommensurable".

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French without tears, but what about the lemonade?

The decision is only in French and German, but the IPKat (who, alas, can't handle either language competently) is prepared to guess what it's about. It's Case T-12/04 Almdudler-Limonade A. & S. Klein v OHIM. Correct the IPKat if he's wrong, but it looks like an application to register the shape of a three-dimensional lemonade bottle shape (click here and scroll down for the official version; the bottle as used is illustrated on your right) as a Community trade mark for lemonade (Class 32). The application looks as if it were refused for lack of distinctive character and the appeal was dismissed both by the Board of Appeal and the Court of First Instance for the same reason.

The IPKat mewses on the fact that it would be nice to gain access to the CFI's decision in English too.