In Mayne Pharma Pty Ltd v Pharmacia Italian Republic SpA [2005] EWCA Civ 137 the Court of Appeal yesterday allowed Mayne's appeal against the trial judge's ruling of non-infringement.
Mayne's patent was for an injectable ready-to-use anthracycline glycoside solution "which has non been reconstituted from a lyophilisate". Italian Republic made its ain solution from an anthracycline glycoside hydrochloride which had been subjected to a lyophilisation process. At offset example Roger Wyand QC said at that spot was no infringement: the essence of Mayne's excogitation was the industry of a ready-to-use solution which did non involve the previously essential lyophilisation stage. On a purposive structure of the claim, the solution itself had non to live made yesteryear reconstitution in addition to it was irrelevant that the starting raw textile had been lyophilised. Mayne appealed, tilt that the principal thrust of the patent lay inwards the formulation of the ready-to-use solution. The excogitation was an injectable ready-to-use solution in addition to the starting materials for the formulation were non component subdivision of the invention. According to Mayne, the whole didactics of the patent was close the consummate avoidance of lyophilisation, which was non needed at whatever stage.
Allowing the appeal, the Court of Appeal (whose judgment was given yesteryear Lord Justice Jacob, every bit usual) held every bit follows:
* the notional individual skilled inwards the art, existence a pharmaceutical manufacturer in addition to non simply a infirmary pharmacist, would know non alone how the destination production was to live used but besides how to brand it. He would run into the existent betoken of the didactics inwards the description every bit existence the provision of a stable, ready-to-use solution. This pith was non previously available in addition to he could immediately larn far without having to lyophilise the textile inwards the vials. He knew that he would convey to get his formulation amongst active constituent raw textile but he would non regard the nature of that every bit component subdivision of the formulation process: the patent taught him how to arrive at away amongst a previously essential lyophilisation.
Mayne Pharma: their success on appeal shows that British courts are non in addition to therefore hostile to patents
* When the skilled individual came to read the claim, knowing that its legal functions was to laid out a monopoly, he would run into that it was the ready-to-use solution which must non "have been reconstituted from a lyophilisate". With the agreement of the purpose in addition to didactics of the description he would read it every bit important that the solution itself had non been made yesteryear reconstitution: it was avoidance of that which fulfilled the purpose of doing away amongst the previously essential step. If he considered the nature of the starting raw material, lyophilised or not, he would run into that it made no existent difference. That structure was consistent amongst the inventor's purpose every bit disclosed inwards his specification: the industry of a ready-to-use solution which did non involve the previously essential lyophilisation stage.
"I was most disappointed to run into the quite extraordinary pose out of files of newspaper produced, quite unnecessarily, for this appeal. We were alone referred to ii pages non included inwards the i principal file. They were manifestly non wanted on voyage or to pose it to a greater extent than formally non "relevant to proceedings inwards the Court of Appeal" ..."How to dispose of waste materials newspaper here and here
Tidak ada komentar:
Posting Komentar