Friday, 10 July 2009

One in the eye for Novartis: EP 258 valid in NL but not UK

In his ruling published today in Novartis AG and Cibavision AG v Johnson & Johnson Medical Ltd and others [2009] EWHC 1671 (Pat), Mr Justice Kitchin (Patents Court, England and Wales) held that Novartis's controversial '258 patent was invalid for insufficiency, through Johnson & Johnson's attacks based on lack of novelty and obviousness failed. J&J's Oasys lens fell in the scope of claims 1 and 24 of that patent, but not claims 8 or 11.

The same patent was held valid and infringed on 11 February 2009 in the Netherlands (see earlier PatLit post here), in a judgment that was very much shorter, possibly because it did not occupy 16 days of court time.

Every decision in which national versions of a European patent are upheld in one country but not another is a nail in the coffin of the opponents of European patent litigation reform.


Duncan Bucknell said...

Hopefully not their coffins Jeremy, but perhaps that of the anti-reform movement?

Joshua said...

A unified patent system in Europe will save a lot of time and money for patent holders and I do not think inconsistent holdings will hamper the process because on the other side, it reflects the need for uniformity.

Anonymous said...

Well, I'm an opponent of a unified system because it will drive "quality" down. In recent years, competition between England and Germany for the patent litigation business has driven up quality in both jurisdictions. Tell me, for example, how the BGH does novelty these days and I'll tell you they got bundled into their about face under pressure from English decisions. And as for England and Holland, how about the Conor stent case? Don't you think that comparing and contrasting GB and NL decisions makes future decisions "better" in both countries? Do you not think that 50:50 cases are pre-destined to deliver conflicting decisions, which in the long run make patent law stronger and more legally "certain" all over Europe?

Being provocative, I suggest that those most wanting a unified system are those who stand to gain most from it, namely, certain law firms who put it about that they operate at a supranational level but then (under the present non-unified system) go and lose to the local top litigators.