Thursday, 19 November 2009

Court of Appeal on disclosure

The Court of Appeal's judgment in Leo v Sandoz is out, and written up by the IPKat here. Floyd J had found the patent valid, an it was common ground coming into the appeal that if that were the case it was infringed by Sandoz's product. Validity was the only issue for Jacob and Patten LJJ, and that turned first on whether the claimed product was novel over an earlier patent for a different use of the same medicine, and second on whether it was obvious because a person skilled in the art (Jacob LJ pointed out that this would in practice be a team of people) would have "come upon the invention without any expectation of successfully finding a better product." Such an obviousness attack should, he said, be scrutinised with great care: "one must be very confident that the steps said to lead to the discovery of a new and beneficial product 'by accident', as it were, were at the least really likely, almost mandated. If you need to do research to find an invention then, for a finding of obviousness, that research must be of a kind which a skilled man would do, not which he might do" (emphasis added).

The appeal raises difficult issues about the principles on which appeals should proceed, too. The appellants would only succeed if they could show that "the decision of the lower court was wrong" (CPR Part 52.11(3)). The attack on the judge's findings of fact, evaluation of the evidence and value-judgement conclusions amounted to one of "perversity" - that no judge could reasonably have reached them on the evidence. The application of the relevant CPR to such cases was considered by the Court of Appeal in more detail and some stringency in Merck's Patents [2003] EWCA Civ 1545 [2004] F.S.R. 332 at [62-71] per Buxton LJ and [71] per Sir Andrew Morritt V-C. The Biogen principle [1997] RPC 1 at p.45 per Lord Hoffmann is also relevant in an obviousness case: "The Judge's conclusion must be reached as an overall assessment of the relevant evidence, both technical and non-technical. If he has made such an assessment, weighing all the factors involved, then it will be difficult indeed to show that he has made an error of principle", according to Jacob LJ. Unsurprisingly, he did not consider that the appellant had succeeded in climbing the mountain that this lot placed in its way, and Patten LJ agreed.

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