Bloomsbury IP & IT Briefing: November Teaser

Nine months after hearing oral argument in Warner-Lambert Company LLC v Generics (UK) Ltd (t/a Mylan) & Anor (rev 1) [2018] UKSC 56, the UK Supreme Court issued its judgment on 14 November. The judgment comprises opinions by four of the five judges, addressing the four issues on appeal: (1) construction of claim 3 of the patent in dispute; (2) sufficiency of disclosure; (3) amendment and abuse of process; and (4) the infringement test for a patent for a manufacturing for a limited use.

The court affirmed the finding of the lower courts that the key claims of Warner-Lambert’s patent were invalid for insufficiency, though the judges disagreed about what the threshold should be for plausibility. The judges further disagreed about how to assess infringement of second medical use patents, with three different tests proposed in the judgment.

The Supreme Court also heard arguments in Actavis Group PTC EHF and others v ICOS Corporation and another in November, concerning the question: ‘What is the correct test for obviousness in the context of assessing the validity of a pharmaceutical patent?’

At the CJEU, the Grand Chamber ruled that the 2001 Copyright Directive precludes the taste of a food product from being protected by copyright. It also said that the directive precludes national legislation from being interpreted so as to grant copyright protection to such a taste. The question arose in Case C-310/17 Levola Hengelo BV v Smilde Foods BV [ECLI:EU:C:2018:899], where Levola alleged that Smilde infringed the copyright in the taste of its Heksenkaas spreadable cream cheese/herb dip. Smilde manufactures a rival product called Witte Wievenkaas.

There have been a number of developments regarding Brexit in the past month. This month’s briefing summarises the provisions relevant to IP in the Withdrawal Agreement (published on 14 November) and the Political Declaration (agreed by EU member states and UK on 25 November). The House of Lords EU Justice Subcommittee also held the final hearings in its enquiry into IP and the UPC.

The IP/IT Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

Written by Ellie MacKenzie

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