Wednesday, 4 March 2009

If the expert misses it, what hope for the addressee?

Reading the judgment, published this morning on Bailii, of Arnold J in Novartis AG v Dexcel-Pharma Ltd [2009] EWHC 336 (Pat) which contains a lot of highly technical stuff about pharmaceuticals. Even when reduced to the two questions the court had to answer (this being purely an infringement case, issues about validity having been disposed of earlier, by Pumfrey J in Novartis AG v Ivax Pharmaceuticals UK Ltd [2006] EWHC 2506 (Pat) ) it takes some comprehending:

"First, does Deximune comprise a hydrophilic phase and a lipophilic phase? Secondly, is it a microemulsion pre-concentrate? The first issue is essentially one of construction, while the second issue depends partly on construction and partly on the technical facts."

I think it would be best if I avoided trying to comment on the science. Three expert witnesses had their say on that, and in the time available since I found the judgment I haven't been able to familiarise myself with the subject matter to say anything useful. I am sure one could learn a great deal of science by reading patent judgments, but - without wishing to say dismissively that life is too short - I fear that life isn't long enough. On the facts, then, the judge agreed that Novartis were right, that Deximune was within claim 1 and also formed a microemulsion within the meaning of (tellingly) claim 48. (So I don't propose to read the patent, either.)

So, it's a case that turns very much on the evidence, and there's no novel law involved as far as I can see. But here's one interesting insight from the judgment (or so it seems to me). What the court is concerned about in interpreting patent claims is what the addressee would make of them. The defendants' case turned on a point that was dealt with in their expert's second report. The fact that he had not advanced it in his first report suggested, logically, to the judge that it would not have occurred to the addressee.

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