Omnipharm Ltd v Merial

Omnipharm Ltd v Merial

European Patent (UK) No. 0 881 881 is valid as it was not obvious to the skilled person to formulate a spot-on fipronil product with a fair expectation of success, and the patent is sufficiently enabling. UK Patent No. 2 317 564 is invalid for insufficiency as it does not provide adequate guidance for the skilled person to formulate a combination spot-on product. The proposed amendments are allowable and do not add matter. Omnipharm has standing to seek a declaration of non-infringement.

Parties
Claimant: Omnipharm Limited; Defendant: Merial
Jurisdiction
England and Wales
Judgment Date
21 December 2011
Procedural Posture
Patent Revocation and Declaration of Non Infringement / Judgment After Trial
Outcome
European Patent (UK) No. 0 881 881 is valid; UK Patent No. 2 317 564 is invalid for insufficiency; amendments allowed; Omnipharm entitled to declaration of non-infringement.
Legal Topics
Obviousness, Insufficiency, Added Matter, Amendment of Patent Claims, Standing for Declaration of Non Infringement
Intellectual Property Patents Obviousness Insufficiency Added Matter Amendment of Patent Claims Standing for Declaration of Non Infringement

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Parties

Omnipharm Limited

Claimant

Merial

Defendant

Procedural Posture

Patent Revocation and Declaration of Non Infringement / Judgment After Trial

Legal Issues

  1. 1 Whether European Patent (UK) No. 0 881 881 and UK Patent No. 2 317 564 are invalid for obviousness and/or insufficiency
  2. 2 Whether proposed amendments to the patents are allowable or add matter
  3. 3 Whether Omnipharm has standing to seek a declaration of non-infringement

Ratio Decidendi

European Patent (UK) No. 0 881 881 is valid as it was not obvious to the skilled person to formulate a spot-on fipronil product with a fair expectation of success, and the patent is sufficiently enabling. UK Patent No. 2 317 564 is invalid for insufficiency as it does not provide adequate guidance for the skilled person to formulate a combination spot-on product. The proposed amendments are allowable and do not add matter. Omnipharm has standing to seek a declaration of non-infringement.

Court Disposition

European Patent (UK) No. 0 881 881 is valid; UK Patent No. 2 317 564 is invalid for insufficiency; amendments allowed; Omnipharm entitled to declaration of non-infringement.

Orders

  • Declaration of non-infringement in relation to agreed non-infringing formulations
  • Amendments to patents allowed