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(1) GENERICS (UK) LTD (2) ARROW GENERICS LTD (3) TEVA UK LTD & TEVA PHARMACEUTICALS LTD v H LUNDBECK A/S

The reasoning of Lord Hoffmann in Biogen Inc v Medeva Plc (1997) RPC 1 was limited to the very unusual nature of the claim in that case and did not apply to any product claim. A patent whose claim related to a product rather than a method was not liable to revocation on the ground of insufficiency under the Patents Act 1977 s.72(1)(c) even if the only inventive step consisted in the method by which the product was made available and even if its description and specification disclosed only that inventive method.

3 March 2009

The appellants (G) appealed against a decision [2008] EWCA Civ 311, [2008] RPC19) that claims in a European patent held by the respondent (L) were valid. Before its expiry, L had held the patent to the antidepressant drug citalopram. The drug was a racemate, consisting of equal numbers of two mirror-image molecules known as enantiomers. L found a way of isolating the enantiomers and discovered that citalopram’s therapeutic effect lay almost entirely in its (+) enantiomer. The inventive step lay in L’s having found a way to separate the enantiomers. It obtained a patent, claiming the (+) enantiomer under the description escitalopram, its pharmaceutical composition, and its process. G claimed revocation of L's patent on the ground that the product claims lacked sufficiency. The judge at first instance found for G, confining the scope of a patent claim to the inventive step or technical contribution involved in the invention. His decision was, however, reversed by the Court of Appe...

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