"Glad" and "comforted" by German decision -- but don't cite anyone else's!

Friday's ruling of the Court of Appeal for England and Wales in Dr Reddy’s Laboratories (UK) Limited v Eli Lilly and Company Limited [2009] EWCA Civ 1362 doesn't seem to have made it on to BAILII yet, and PatLit wonders whether this will remain the case till after the Christmas break. Accordingly this blog is hosting the judgment here for the convenience of its readers. The substantive patent aspects of this decision, dismissing Dr Reddy's appeal against the refusal of Mr Justice Floyd to revoke Lilly's Olanzapine patent for psychotic disorders will doubtless be covered elsewhere. This blog is just picking up one small item for now: the subject of the citation of foreign judgments in the courts of England and Wales. Lord Justice Jacob said this:

"Foreign Decisions

79. We were provided with two thick bundles of decisions about the corresponding patent in a host of jurisdictions (the US, Canada, the Czech Republic, Finland, Romania, Slovakia, Slovenia, Spain, China and Hungary). In some countries there was more than one decision.

80. I did not find this all that helpful. Mr Carr invited us particularly to follow the Canadian decisions (where the patent was held invalid) and in particular the decision of Hughes J of June 5th 2007. He essentially followed the IG approach in saying that the Patent had to disclose an advantage over the prior art. It does not seem he was shown the EPO case law (why should he have been?). It does not seem that he was invited to consider patentability on the basis of whether the Patent disclosed real advantages over what was actually known. So I decline Mr Carr’s suggestion.

81. I do not find it necessary to refer to any of the other decisions, save for that of the German Supreme Court (the Bundesgerichthof) of 16th December 2008, which I have mentioned briefly already. The Court held the Patent valid. All the arguments before us were available to be considered, although only some were considered explicitly. The Bundespatentsgericht had held the patent anticipated over Chakrabarti 1980 (a point not run here). The BGH rejected both anticipation and obviousness over 235, pithily but essentially for the same reasons as Floyd J did and we do. They had an expert who said that there was no reason to pick olanzapine out of the vast prior class and that was enough both for novelty and non-obviousness. And they rejected in some more detail obviousness over Chakrabarti 1980.

82. We of course are not bound by a decision of another national court. And indeed it is quite possible for national courts applying the same law to come to different conclusions because the evidence is different. So I say no more than that I am glad we reach the same decision as the BGH. It is an example of the fact that, by and large, different courts in Europe do reach the same conclusions – even though, perhaps understandably, the rarer cases where they differ get more publicity".

Jacob LJ's sentiment regarding the German citation was quietly echoed by the Master of the Rolls:

"118. I should add that I draw comfort in reaching this conclusion from the fact that in Germany both the Oberlandsgericht, determining infringement in the decision I have mentioned in paragraph [23], and the Bundesgerichthof, determining validity on appeal from the Bundespatentgericht, reached the same conclusion, namely that the Patent was valid".