Novartis AG v Dexcel-Pharma Ltd [2008] EWHC 1266 (Pat) (10 June 2008)

Novartis AG v Dexcel-Pharma Ltd [2008] EWHC 1266 (Pat) (10 June 2008)

There is a serious issue to be tried as to whether Dexcel's DEXIMUNE product infringes Novartis' patent, particularly in light of new evidence and the arguable construction that distinct phases need only be present in the aqueous micro-emulsion, not necessarily in the pre-concentrate. The balance of convenience favours preserving the status quo and granting an interim injunction to Novartis, as the potential harm to Novartis outweighs the harm to Dexcel, and Dexcel could have sought to clarify its legal position earlier.

Citation
[2008] EWHC 1266 (Pat)
Parties
Claimant: Novartis AG; Defendant: Dexcel-Pharma Limited
Jurisdiction
England and Wales
Judgment Date
10 June 2008
Procedural Posture
Patent Interim Injunction Application / Interim Relief (pre Trial)
Outcome
Interim injunction granted
Legal Topics
Interim Injunctions, Patent Infringement, Claim Construction, Balance of Convenience
Intellectual Property Patents Interim Injunctions Patent Infringement Claim Construction Balance of Convenience

Case Brief

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Parties

Novartis AG

Claimant

Dexcel-Pharma Limited

Defendant

Procedural Posture

Patent Interim Injunction Application / Interim Relief (pre Trial)

Legal Issues

  1. 1 Whether Dexcel's DEXIMUNE product infringes Novartis' UK Patent No 2 222 770
  2. 2 Whether the construction of the patent claim requires distinct hydrophilic and lipophilic phases in the pre-concentrate or only in the aqueous micro-emulsion
  3. 3 Whether previous judicial construction of the patent is binding in light of new evidence

Ratio Decidendi

There is a serious issue to be tried as to whether Dexcel's DEXIMUNE product infringes Novartis' patent, particularly in light of new evidence and the arguable construction that distinct phases need only be present in the aqueous micro-emulsion, not necessarily in the pre-concentrate. The balance of convenience favours preserving the status quo and granting an interim injunction to Novartis, as the potential harm to Novartis outweighs the harm to Dexcel, and Dexcel could have sought to clarify its legal position earlier.

Court Disposition

Interim injunction granted

Orders

  • Dexcel-Pharma Limited is restrained from marketing DEXIMUNE in the UK pending trial or further order.