Allergan, Inc & Anor v Aspire Pharma Ltd [2019] EWHC 1085 (Pat) (03 May 2019)

Allergan, Inc & Anor v Aspire Pharma Ltd [2019] EWHC 1085 (Pat) (03 May 2019)

The patent claims, including the proposed amendment (claim 18), were found to be obvious over the prior art (Laibovitz) in light of the common general knowledge that BAK acts as a penetration enhancer in ophthalmic formulations. The skilled team would have found it obvious to use a lower concentration of bimatoprost with a higher concentration of BAK. The patent was not found insufficient, but the amendment did not cure the obviousness. Therefore, the patent is invalid for obviousness.

Citation
[2019] EWHC 1085 (Pat)
Parties
Claimant: Allergan, Inc; Claimant: Allergan Limited; Defendant: Aspire Pharma Limited; Claimant: Accord Healthcare Limited; Defendant: Allergan, Inc
Jurisdiction
England and Wales
Judgment Date
03 May 2019
Procedural Posture
Patent Infringement and Validity / First Instance Judgment
Outcome
Patent held invalid for obviousness; amendment refused as it does not cure obviousness.
Legal Topics
Patent Validity, Obviousness, Insufficiency, Pharmaceutical Patents, Amendment of Patent Claims
Intellectual Property Patents Patent Validity Obviousness Insufficiency Pharmaceutical Patents Amendment of Patent Claims

Case Brief

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Parties

Allergan, Inc

Claimant

Allergan Limited

Claimant

Aspire Pharma Limited

Defendant

Accord Healthcare Limited

Claimant

Allergan, Inc

Defendant

Procedural Posture

Patent Infringement and Validity / First Instance Judgment

Legal Issues

  1. 1 Whether the patent claims are obvious over the prior art (Laibovitz)
  2. 2 Whether the patent is insufficient
  3. 3 Whether the proposed amendment (claim 18) cures any defect

Ratio Decidendi

The patent claims, including the proposed amendment (claim 18), were found to be obvious over the prior art (Laibovitz) in light of the common general knowledge that BAK acts as a penetration enhancer in ophthalmic formulations. The skilled team would have found it obvious to use a lower concentration of bimatoprost with a higher concentration of BAK. The patent was not found insufficient, but the amendment did not cure the obviousness. Therefore, the patent is invalid for obviousness.

Court Disposition

Patent held invalid for obviousness; amendment refused as it does not cure obviousness.

Orders

  • Patent claims 1, 5, 12, and proposed claim 18 are invalid for obviousness.
  • Application to amend the patent refused.