Friday, 24 June 2011

Particle size: it's obvious

I already mentioned Cephalon v Orchid & Mylan [2011] EWHC 1591 (Pat) in passing, but now I've looked at it you might like to know more. The interesting part is the bit that deals with validity: the infringement point seems to have turned on a pretty narrow construction point, and indeed the outcome was determined by some rather unfortunate claim drafting - so the judge said. But I'm not sure even the invalidity bit is so very interesting ...

It all came down to the size of particles (this being a pharmaceutical case), and whether it was obvious to use smaller particles of the active ingredient (modafinil) when making up the formulation. Conveniently, the matter was addressed in a publication called Drugs of the Future, and the judge was able to find that between that publication and the common general knowledge it was obvious to use smaller particles. It takes quite a few paragraphs of the judgment to get there, but it does seem fairly cut and dried. The judge didn't need to go on to consider obviousness over one particular piece of prior art, nor did he have to consider the insufficiency squeeze that the defendant tried to put on the patent. So perhaps not a judgment many people are going to find worth spending time studying.

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