Monday, 23 February 2009

One in the eye for J 'n' J, as Novartis strikes

From Mark van Gardingen and his colleagues at Brinkhof, The Netherlands, comes a very splendid English translation of a recent and eagerly anticipated Hague District Court decision by Judges Van Peursem, Blok and Van Oostveen in Novartis AG v Johnson & Johnson Medical BV and others. This 11 February decision upholds the Novartis/Ciba Vision European Patent (EP 258) for extended wear contact lenses, additionally granting an injunction against Johnson & Johnson to block further sales in the Netherlands of its Acuvue Oasys product. Says Mark:
"The decision deals with almost all aspects of patent law: priority, clarity and sufficiency, novelty, inventive step and infringement. The Court follows the EPO case law road map on the validity topics (and in effect confirms correctness of TBA decision T 0246/04 of last year regarding the same patent).

Parallel proceedings are pending in the UK and in Germany, but have not yet come to hearings".
On the question of injunctive relief pending an appeal the court had this to say:
"4.55. The order will be enforceable regardless of any appeal, in spite of J&J’s opposition. In the opinion of the court, Novartis’ interests in direct enforcement of the judgment outweighs the interests of J&J in maintaining the status quo until the appeal is decided. Novartis’ interest follows from the continual nature of the infringement of its exclusive rights. J&J has insufficiently substantiated why that interest should in this case give way to its desire to continue the infringement. The mere fact that there is a limited number of parties in the market and that there is no reason to assume that J&J would eventually have no assets from which damage could be recovered, is – for whatever it is worth - not sufficient".
You can read the full text of this decision here.

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