Leo v Sandoz: Floyd J comments on lack of supra-national patent court

After all the preliminary skirmishes over interim relief (where did the balance of convenience lie? And would damages be an adequate remedy? See here and here), the action before the Patents Court for England and Wales in Leo Pharma v Sandoz [2009] EWHC 996 (Pat) has now reached its conclusion. Mr Justice Floyd gave his ruling today -- you can read it in full on BAILII here.

In short, the court held that no claim of Leo's patent, for the monohydrate form of calcipotriol, was invalid, thus allowing Leo's infringement claim and dismissing the counterclaim for revocation. That conclusion will doubtless be closely scrutinised elsewhere for its substantive merit, but PatLit just wants to pick out this bit for now. At para 5 the judge says:

"The parties are in dispute over the Patent elsewhere. The Dutch court, the District Court at the Hague (Judges Kalden, Van Peursem and Van Walderveen), has rejected Sandoz' invalidity attack in a judgment dated 11th February 2009. During the trial I was told that a German court had held the patent invalid on the basis of an obviousness attack different to the one pursued before me. I have not been provided with a copy of the German judgment. So, at the moment, it is one-all. If there were a supra-national court of the kind currently proposed, able to decide on disputes about the validity of patents for the whole of Europe, conflicting results of this kind between courts of first instance could be avoided".

Comments of this nature may not please the litigants, whose resources are spread out across several jurisdictions in a single market. They may however serve to keep up the pressure for a workable resolution to this problem and to strengthen the resolve of those who are already convinced on the merits, so that patent litigation in Europe should not be allowed to slide down the agenda merely because it will be difficult to achieve.