The Italian torpedo is dead: long live the Italian torpedo

A recently published decision of the Milan Court of First Instancenot only confirms that a cross-border claim for a declarationof non-infringement of a European patent is unlikely to succeedbefore an Italian court unless it is brought against an Italiandomiciled party, but also shows that the longstanding traditionof Italian torpedoes is not yet defunct, contrary to predictionsafter a landmark decision of the Italian Supreme Court in 2003.     

Chewing the fat over the High Court's judgment on the world's best-selling drug

The English Patents Court has recently refused a declarationof non-infringement in relation to the compound patent coveringAtorvastatin (Lipitor), the world's best-selling drug, but founda patent relating to its hemicalcium salt invalid for lack ofnovelty and obviousness; this decision is seen as a victoryfor Pfizer since the invalidation of the hemicalcium salt patenthas not shortened its period of exclusivity.     

Australian Full Federal Court clarifies best method disclosure obligation in Pfizer v Eli Lilly appeal

The Australian Full Federal Court has found that (i) a patentapplicant may amend the patent specification, until at leastthe date of grant, to include the best method known to the applicantat the date of filing and that (ii) there is no requirementthat new best methods discovered after the date of filing ofa complete patent specification be added by amendment.     

Access to medicine and the dangers of patent linkage: lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India's drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.     

Institut Pasteur v. United States: the AIDS patent dispute, the Contract Disputes Act and the international exchange of scientific data

In the case of Institut Pasteur v. United States, the Institut Pasteur (Pasteur) claimed that the National Cancer Institute (NCI) had breached express and implied contracts to share research on AIDS virus samples provided to NCI by Pasteur. NCI scientists allegedly used the samples to acquire information which allowed NCI to file patent applications for an AIDS blood test kit. The United States Claims Court dismissed the complaint by holding that the Institut Pasteur had not complied with certain administrative procedures required by the Contract Disputes Act before bringing its suit. The United States Court of Appeals for the Federal Circuit reversed the decision of the Claims Court by holding that the disputed contracts did not fit within the scope of the Contract Disputes Act. Soon after the Court of Appeals decision, President Reagan and Prime Minister Chirac announced a settlement agreement whereby the lawsuit was to be dropped, American and French scientists were to share credit for having discovered the AIDS virus, and both parties to the suit were to share the patent rights for the AIDS blood test kit. This settlement suggest that international legal disputes involving urgent scientific and medical matters may require dispute resolution techniques that serve as alternatives to national courts.     

The “process” of patenting: Why should we care about a potential U.S. Supreme Court decision in Bilski v. Doll?

In Bilski v. Doll, the U.S. Supreme Court is called to define one of the categories of patent-eligible subject matter, “process” patents. In 2008, the Court of Appeals for the Federal Circuit held that the category has a narrow meaning, and that to be eligible for a process patent under 35 U.S.C. § 101, the invention must involve a machine or apparatus or involve a transformation to a different state or thing, ultimately rejecting the patent application as unpatentable subject matter. The patent applicants have asked the U.S. Supreme Court to determine two issues: first, the meaning of “process” in 35 U.S.C. § 101 and whether the lower court properly relied on a “machine-or-transformation” test, and second, the test's potential conflict with 35 U.S.C. § 273, which provides protection for “method[s] of doing or conducting business.” The Court's decision could change the way that research and business are done, and patent protection for such investments. Parts 1 and 2 of this article address Bilski directly and what is and is not in dispute. Part 3 addresses the “machine-or-transformation” test, while Parts 4 and 5 address reasons not to adopt such a test.     

Australia's highest court raises the patent invalidity bar

In a long-awaited decision, the Australian High Court reviewedseveral key questions pertaining to patent validity and inventivestep in particular; in so doing, it has made it harder to invalidateAustralian patents.     

House of Lords simplifies the law on patent entitlement

The House of Lords has held that, to claim entitlement to another'spatent or patent application, a person need only prove thathe was the inventor of the subject-matter of the patent, anddoes not also need to invoke ‘some other rule of law’as required previously by the Court of Appeal in Markem v Zipher[2005] RPC 31.     

Adjudication of patent validity is sent home

The Court of Justice restrictively interprets the Brussels Convention,frustrating the development of transnational adjudication ofpatent infringement claims by precluding a court from consideringthe validity of a foreign patent even where the decision onlyhas effect between the parties.     

Justice, at last, in the archetypical patent entitlement dispute

The Court of Appeal has held that Cinpres was not estopped fromsucceeding in its entitlement claim, despite having failed inan earlier claim concerning the related application, and isthe rightful owner of a disputed European patent.     

专利的非显而易见性判断——对美国最高法院Teleflex案判决的解析

美国最高法院在新近判决的Teleflex案中认为判断非显而易见性并没有一个确定的标准,严格适用"动机-教导-启示"的标准与专利法并不相符,"协同效应"标准以及"出人意料技术效果"标准是可适用的有益标准。美国最高法院在Teleflex案中以及先前在判断非显而易见性时所采取的立场表明,一个国家的专利判断标准必须与其国家的经济与技术发展水平相适应。中国专利的非显而易见性的判断标准过低,将阻碍中国的经济发展与技术创新,需要对之作出必要的修订。     

Canadian Supreme Court upholds,but limits,AZT patent

On 5 December 2002, the Supreme Court of Canada ended a long-running dispute when it unanimously upheld the validity of the Canadian patent on the antiretroviral drug zidovudine (AZT) held by Glaxo Wellcome (now GlaxoSmithKline).     

Patent procedure in England and Wales: the Streamlined Procedure meets resistance

The proposition by the English High Court in 2005 that the StreamlinedProcedure for dealing with patent actions should apply wheneverraised by a party to an action in the absence of convincingreasons to the contrary has been rejected by the Court of Appeal.     

The Patents Court's streamlined litigation procedure--two years on

Legal and practical context. The streamlined procedure is asimplified patent litigation procedure that was introduced overtwo years ago in the English Patents Court and Patents CountyCourt. This article looks at the procedure, the way it has beenapplied since its introduction and the effect it has had onpatent litigation in the UK. Key points. The procedure was designed to deal with simple patentcases quickly and relatively cheaply. It is geared towards aone day trial taking place approximately eight months afterthe commencement of proceedings. Under the procedure there isno automatic disclosure, no experiments and cross-examinationis limited to permitted topics only. Although it was designedwith patents in mind, the procedure is available for all appropriateactions heard in the Patents Court and Patents County Court.It is only suitable, however, for relatively simple actionsin which complex findings of fact are not necessary. Conclusions. Not many actions have come to trial under thisprocedure, but its availability is nonetheless of great significanceto patent litigation in the UK. This is because it providesa new point of departure for directions in certain types ofaction and because its availability has increased access topatent litigation in the UK and has renewed interest in thePatents Court and Patents County Court as forums in which toissue patent proceedings.     

Res judicata in patent actions: is the law too entrenched?

The Court of Appeal rules that a patentee's entitlement to financialcompensation following the final determination by a UK courtthat its patent is both valid and infringed cannot be underminedby the subsequent revocation of that patent in opposition proceedingsin the EPO.     

Patents holders are not protected from US Government infringement by the Fifth Amendment

In a patent infringement action against the government, theUnited States Court of Appeals for the Federal Circuit interpreted28 USC section 1498 as rendering the government liable for theinfringement of a method patent only when every step of theclaimed method is practised in the United States and furtherheld that a plaintiff cannot allege patent infringement againstthe government as a Fifth Amendment taking.     

Claim construction and the doctrine of equivalents in Amgen v Transkaryotic Therapies, Inc

The US Court of Appeals for the Federal Circuit has affirmeda District Court decision that Transkaryotic Therapies Inc andAventis Pharmaceuticals Inc infringed Amgen's erythropoietin(EPO) patents; this decision upheld the validity of two of Amgen'sEPO patents and the infringement by Transkaryotic of three patents,including a patent that does not expire until 2015.     

美国2011年专利法第一案Myriad案评——人类基因可专利性的再思考

Myriad公司从人体DNA中分离的两种基因片断(BRCA1,BRCA2)获得了专利。美国分子病理协会等提起诉讼,宣称人类基因不是可专利性客体,该专利无效。上诉法院判定该基因片断是合法的专利客体,但该判决与最高法院的先例并不完全吻合。在成文法及司法先例对基因类专利都没有明确规定的情况下,公共政策的分析是更适当的切入角度。从政策性角度分析,否认人类基因的可专利性是对社会最有利的政策。专利制度是工具,不是目的。加拿大的有益实践启示我国也应坚持否认人类基因类专利的政策。     

More haste, less speed? BlackBerry in the United Kingdom

The Patents Court for England and Wales has provided importantguidance on the use of the ‘streamlined procedure’for patent cases. This case also highlights how the conflictbetween the procedures followed in patent cases in differentcountries in Europe can affect the tactics employed by litigants.