Unfortunate, but curable

In Leo Pharma A/S and Leo Laboratories Ltd v Sandoz Ltd [2009] EWCA Civ 1188 the Court of Appeal for England and Wales (Lords Justices Jacob and Patten) today dismissed Sandoz's appeal against Mr Justice Floyd's finding in May, in [2009] EWHC 996 (Pat), that Leo Pharma's patent was valid.

There was not a lot of law in this appeal, which Jacob LJ rightly described as a full-frontal attack on the trial judge's findings of fact, dressed up as an appeal in law. Jacob LJ closed his judgment with a further plug for a single European patent court (whatever form that might take):

"77. This appeal falls to be dismissed. I only add a couple of points. This is yet another case where validity has to be assessed by several national courts. We have reached the same result as that in Holland at first instance (where the argument was in part different). The Bundespatentgericht has gone the other way – but working on different prior art, prior art which Sandoz in this country abandoned. Different results in different countries based on different cases is, of course, explicable. It is an unfortunate state of affairs, curable only by a single European Patent Court".