(1) Teva UK Ltd (2) Teva Pharmaceutical Industries Ltd v Leo Pharma A/s [2015] EWCA Civ 779 (28 July 2015)

(1) Teva UK Ltd (2) Teva Pharmaceutical Industries Ltd v Leo Pharma A/s [2015] EWCA Civ 779 (28 July 2015)

The judge erred in principle by holding that the invention was obvious merely because Arlamol E, a non-aqueous solvent, could be included in a research programme, without a fair expectation of success. The evidence showed that identifying a suitable non-aqueous solvent was a research project with no sufficient expectation that any particular solvent, including Arlamol E, would work. The invention solved a long-felt want and was not obvious. The added matter and insufficiency arguments failed as the amended claims were disclosed in the application and the patent enabled the skilled person to make the ointment.

Citation
[2015] EWCA Civ 779
Parties
Claimant/respondent: TEVA UK Ltd; Claimant/respondent: TEVA Pharmaceutical Industries Ltd; Defendant/appellant: LEO Pharma A/S; Third Party/appellant: LEO Laboratories Limited
Jurisdiction
England and Wales
Judgment Date
28 July 2015
Procedural Posture
Patent Revocation Appeal / Appeal From High Court (patents Court) to Court of Appeal
Outcome
Appeal allowed; revocation order set aside; patents upheld.
Legal Topics
Obviousness, Added Matter, Insufficiency, Combination Pharmaceutical Products, Expectation of Success, Prior Art
Intellectual Property Patents Obviousness Added Matter Insufficiency Combination Pharmaceutical Products Expectation of Success Prior Art

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 10 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

TEVA UK Ltd

Claimant/respondent

TEVA Pharmaceutical Industries Ltd

Claimant/respondent

LEO Pharma A/S

Defendant/appellant

LEO Laboratories Limited

Third Party/appellant

Procedural Posture

Patent Revocation Appeal / Appeal From High Court (patents Court) to Court of Appeal

Legal Issues

  1. 1 Whether the patents for a combination ointment containing calcipotriol and betamethasone with Arlamol E as solvent were obvious over prior art (Turi)
  2. 2 Whether the amended claims added matter beyond the application as filed
  3. 3 Whether the patents were insufficiently disclosed

Ratio Decidendi

The judge erred in principle by holding that the invention was obvious merely because Arlamol E, a non-aqueous solvent, could be included in a research programme, without a fair expectation of success. The evidence showed that identifying a suitable non-aqueous solvent was a research project with no sufficient expectation that any particular solvent, including Arlamol E, would work. The invention solved a long-felt want and was not obvious. The added matter and insufficiency arguments failed as the amended claims were disclosed in the application and the patent enabled the skilled person to make the ointment.

Court Disposition

Appeal allowed; revocation order set aside; patents upheld.

Orders

  • The appeal is allowed.
  • The order for revocation of patents 1 178 808 and 2 455 083 is set aside.