EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.28.19

European Patents Found to be Invalid and Deemed Impotent in the Highest British Court (Again)

Posted in Courtroom, Europe, Patents at 12:42 pm by Dr. Roy Schestowitz

It’s about the tadalafil generic

Just gimme the hands

Summary: “Just gimme the patent,” says every greedy corporation looking to ban its competition (including generics) and facilitate monopoly pricing; the problem is, the EPO keeps granting invalid patents that take a lot of time and money to formally invalidate (in courts), as Actavis v ICOS has just shown

THE number of patents granted by the U.S. Patent and Trademark Office (USPTO) declined last year after certainty associated with these patents had declined and then number of patent lawsuits had totally collapsed. We now see something similar going on in Europe. Was it inevitable? Couldn’t we learn from the mistakes of American lawmakers and USPTO officials?

We are pleased to see that IP Kat (Rose Hughes) has recently been covering some cases that relate to the European Patent Office (EPO). Hughes is doing an OK job without coming across as a patent extremist like the Bristows staff at IP Kat and yesterday she wrote this article about a (British) Supreme Court outcome. Yet another EPO-granted patent has been found to be nonsense:

This morning, the UK Supreme Court delivered its decision in Actavis v ICOS [2019] USKC 15, upholding the Court of Appeal’s decision that ICOS’s dosage regimen patent was obvious. In doing so, the Supreme Court (in a welcome change…) has followed the previous approach of the lower courts to the question of inventive step in both the UK courts and in the jurisprudence of the EPO.

The patent in question related to tadalafil (branded as CIALIS). Tadalafil is an orally administered drug for treating sexual dysfunction. Tadalafil works in a similar way to Pfizer’s famous blockbuster drug Viagra, but with fewer side effects. The original first medical use patent for tadalafil (EP 0740668, “Daugan”) and its associated SPC have both expired. The latest decision related to ICOS’s patent (EP 1173181) which claimed a particular dosage regime of tadalafil. Lilly is the exclusive licensee of the patent.

In an attempt to clear the market for their own tadalafil generic, Actavis brought revocation proceedings against the ICOS/Lilly patent. Actavis argued that the claims lacked novelty and inventive step in view of the original tadalafil patent (“Daugan”). The contentious claims related to a dose regime of up to 5mg tadalafil per day. The Court of Appeal, in overturning Mr Justice Birss’ decision, found the patent invalid for lack of inventive step (Actavis v ICOS [2017] EWCA Civ 1671). Particularly, it was found that the claimed dose would have been obvious for the skilled person to try (IPKat post here).

Notice that first comment which asks: “Can every one of Lord Hodge’s 9 factors be accommodated within Lord Hodge’s exposition of the EPO’s Problem and Solution Approach? If not all, which ones not?”

“Can every one of Lord Hodge’s 9 factors be accommodated within Lord Hodge’s exposition of the EPO’s Problem and Solution Approach?”
      –Anonymous
Someone “from France” then added: “One important factor seems indeed to be missing, which is the “reasonable expectation of success”, even though certain of the listed factors are usually considered for applying this factor. The reasoning that the clinical trial is somewhat a “one way street” (to use EPO standards) is not completely out of scope, but the specific dosage finding that has been identified for optimal effect could, in my view, not have been necessarily derived from this approach (the dosage plateau could not have been expected, considering it seems to necessarily imply some hindsight). I’m not sure I agree with the comment in the post that such a decision is welcome…, I can hardly consider a diverging view between the EPO and national courts to be welcome.”

Another anonymous commenter quotes: “The original first medical use patent for tadalafil (EP 0740668, “Daugan”) and its associated SPC have both expired.”

Then comes the question (or questions): “Doesn’t this mean it has already passed through clinical trials? By the courts’ logic should a 5mg dose already be known? What have I missed?”

What about public interests as well? Either way, the court has trashed yet another European Patent. Will António Campinos get the message or just keep on lying about quality?

“I can hardly consider a diverging view between the EPO and national courts to be welcome.”
      –Anonymous
Freshfields Bruckhaus Deringer LLP’s Laura Whiting and Paul Abbott wrote about it this morning (publication time), calling it “its second patent decision in 6 months” (so rarely do we get to see, at least at this level, just how awful the quality of patents has become).

We’ll probably hear a lot more about it in days if not weeks to come.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Patent Extremism is Not Normal and Not an Innocent Mindset

    Reflection upon the sad state of the European patent system and how media turns a blind eye to it; worldwide, in general, the discussion about patents is being warped by the litigation giants, whose sole goal is to maximise the number of lawsuits/shakedowns (personal gain)



  2. Links 22/9/2019: LLVM 9.0.0 and FreeBSD 12.1 Beta

    Links for the day



  3. Links 21/9/2019: Plasma 5.17 Beta in Kubuntu, Cockpit 203

    Links for the day



  4. IBM Cannot Become a True Friend of Free Software Because of Its Current Patent Policy

    IBM needs to quit bullying people/companies with software patents; that would help towards appeasement of IBM critics and sceptics



  5. When Patent 'Professionals' Sound Like Children Who Learned to Parrot Some Intentionally-Misleading Buzzwords, Myths and Lies

    With buzzwords like "AI" and misleading terms like "IP" the litigation zealots are trying to convince themselves (and the public) that software is a physical thing and a "property" which needs "protecting" from "theft"; it doesn't seem to bother these people that copyright law already covers software<



  6. The European Parliament Needs to Become More Outspoken About EPO Abuses

    There are few encouraging signs in Europe right now because the EPO's disregard for patent law (striving to just grant as many patents as possible) earned it much-needed backlash from the European Parliament



  7. Links 19/9/2019: German Federal Ministry of the Interior Wants FOSS, Top Snaps Named

    Links for the day



  8. Buying the Voices of 'Linux' People to Repeat Microsoft's Talking Points While Removing Our Icons and Leaders (Calling Them Sexist)

    The dirty games leveraged by several companies including Microsoft target charismatic people who are essential for morale and leadership; these tactics aren't particularly novel



  9. When the EPO Sees Itself as Above European Law, Grants Patents in Defiance of the EPC (Its Founding Document) and Violates Staff's Labour Rights/Protections (International Law)

    The absurd state of affairs at the EPO has reached the point where laws at every level are being violated and even judges are being threatened or vainly ignored; the EU is belatedly trying to tackle these issues, which have actually cost its credibility a great deal and threaten the perception of Rule of Law at multiple levels



  10. Links 19/9/2019: Samba 4.11.0 and Kubernetes 1.16

    Links for the day



  11. Update on Koch v EPO: Internal Appeals Committee (IAC) Composition Still Likely Illegal

    An important EPO case, concerning a dismissed staff representative, shows what ILO-AT and the EPO's Internal Appeals Committee boil down to



  12. Links 18/9/2019: Fedora Linux 31 Beta, PCLinuxOS 2019.09 Update

    Links for the day



  13. Links 17/9/2019: CentOS 7.7 and Funtoo Linux 1.4 Released

    Links for the day



  14. EPO is Not European

    Internationalists and patent trolls are those who stand to benefit from the 'globalisation' of low-quality and law-breaking patents such as patents on algorithms, nature and life itself; the EPO isn't equipped to serve its original goals anymore



  15. The EPO's Central Staff Committee and SUEPO (Staff Union) Respond to “Fascist Bills” Supported by EPO President António Campinos

    Raw material pertaining to the latest Campinos "scandal"; what Campinos said, what the Central Staff Committee (CSC) said, and what SUEPO said



  16. Storm Brewing in the European Patent Office After a Hot Summer

    Things aren't rosy in EPOnia (to say the least); in fact, things have been getting a lot worse lately, but the public wouldn't know judging by what media tells the public (almost nothing)



  17. Why I Once Called for Richard Stallman to Step Down

    Guest post from the developer who recently authored "Getting Stallman Wrong Means Getting The 21st Century Wrong"



  18. As Richard Stallman Resigns Let's Consider Why GNU/Linux Without Stallman and Torvalds Would be a Victory to Microsoft

    Stallman has been ejected after a lot of intentionally misleading press coverage; this is a dark day for Software Freedom



  19. Links 16/9/2019: GNU Linux-libre 5.3, GNU World Order 13×38, Vista 10 Breaks Itself Again

    Links for the day



  20. Links 16/9/2019: Qt Quick on Vulkan, Metal, and Direct3D; BlackWeb 1.2 Reviewed

    Links for the day



  21. Richard Stallman's Controversial Views Are Nothing New and They Distract From Bill Gates' Vastly Worse Role

    It's easier to attack Richard Stallman (RMS) using politics (than using his views on software) and media focus on Stallman's personal views on sexuality bears some resemblance to the push against Linus Torvalds, which leans largely on the false perception that he is sexist, rude and intolerant



  22. Links 16/9/2019: Linux 5.3, EasyOS Releases, Media Backlash Against RMS

    Links for the day



  23. Openwashing Report on Open Networking Foundation (ONF): When Open Source Means Collaboration Among Giant Spying Companies

    Massive telecommunications oligopolies (telecoms) are being described as ethical and responsible by means of openwashing; they even have their own front groups for that obscene mischaracterisation and ONF is one of those



  24. 'Open Source' You Cannot Run Without Renting or 'Licensing' Windows From Microsoft

    When so-called ‘open source’ programs strictly require Vista 10 (or similar) to run, how open are they really and does that not redefine the nature of Open Source while betraying everything Free/libre software stands for?



  25. All About Control: Microsoft is Not Open Source But an Open Source Censor/Spy and GitHub/LinkedIn/Skype Are Its Proprietary Censorship/Surveillance Tools

    All the big companies which Microsoft bought in recent years are proprietary software and all of the company’s big products remain proprietary software; all that “Open Source” is to Microsoft is “something to control and censor“



  26. The Sad State of GNU/Linux News Sites

    The ‘media coup’ of corporate giants (that claim to be 'friends') means that history of GNU/Linux is being distorted and lied about; it also explains prevalent lies such as "Microsoft loves Linux" and denial of GNU/Free software



  27. EPO President Along With Bristows, Managing IP and Other Team UPC Boosters Are Lobbying for Software Patents in Clear and Direct Violation of the EPC

    A calm interpretation of the latest wave of lobbying from litigation professionals, i.e. people who profit when there are lots of patent disputes and even expensive lawsuits which may be totally frivolous (for example, based upon fake patents that aren't EPC-compliant)



  28. Links 15/9/2019: Radeon ROCm 2.7.2, KDE Frameworks 5.62.0, PineTime and Bison 3.4.2

    Links for the day



  29. Illegal/Invalid Patents (IPs) Have Become the 'Norm' in Europe

    Normalisation of invalid patents (granted by the EPO in defiance of the EPC) is a serious problem, but patent law firms continue to exploit that while this whole 'patent bubble' lasts (apparently the number of applications will continue to decrease because the perceived value of European Patents diminishes)



  30. Patent Maximalists, Orbiting the European Patent Office, Work to 'Globalise' a System of Monopolies on Everything

    Monopolies on just about everything are being granted in defiance of the EPC and there are those looking to make this violation ‘unitary’, even worldwide if not just EU-wide


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts