Smithkline Beecham Plc & Anor v Apotex Europe Ltd & Ors

Smithkline Beecham Plc & Anor v Apotex Europe Ltd & Ors

Section 65 of the Patents Act 1977 entitles the patentee to indemnity costs at first instance but not on appeal; section 63 does not preclude costs recovery absent a judicial finding of partial invalidity; costs should be apportioned by percentage reflecting the issues won and lost, with Apotex awarded 16% of their costs below and SKB 25% of their costs on appeal.

Parties
Appellant/claimant: Smithkline Beecham plc; Appellant/claimant: Glaxosmithkline UK Limited; Respondent/defendant: Apotex Europe Limited; Respondent/defendant: Neolab Limited; Respondent/defendant: Waymade Healthcare plc; Respondent/claimant: Beecham Group plc
Jurisdiction
England and Wales
Judgment Date
16 December 2004
Procedural Posture
Civil Appeal (patent) / Costs Determination After Appeal
Outcome
Costs apportioned; appeal allowed on costs
Legal Topics
Patents, Costs, Indemnity Costs, Statutory Interpretation
Intellectual Property Civil Procedure Patents Costs Indemnity Costs Statutory Interpretation

Case Brief

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Parties

Smithkline Beecham plc

Appellant/claimant

Glaxosmithkline UK Limited

Appellant/claimant

Apotex Europe Limited

Respondent/defendant

Neolab Limited

Respondent/defendant

Waymade Healthcare plc

Respondent/defendant

Beecham Group plc

Respondent/claimant

Procedural Posture

Civil Appeal (patent) / Costs Determination After Appeal

Legal Issues

  1. 1 Whether section 65 of the Patents Act 1977 entitles the patentee to indemnity costs on appeal and/or at first instance
  2. 2 Whether section 63 of the Patents Act 1977 precludes costs recovery due to partial invalidity
  3. 3 How costs should be apportioned given the outcome on infringement and validity

Ratio Decidendi

Section 65 of the Patents Act 1977 entitles the patentee to indemnity costs at first instance but not on appeal; section 63 does not preclude costs recovery absent a judicial finding of partial invalidity; costs should be apportioned by percentage reflecting the issues won and lost, with Apotex awarded 16% of their costs below and SKB 25% of their costs on appeal.

Court Disposition

Costs apportioned; appeal allowed on costs

Orders

  • Apotex awarded 16% of their costs at first instance on a standard basis
  • SKB awarded 25% of their costs of the appeal on a standard basis