Richter Gedeon Vegyeszeti Gyar RT v Generics (UK) Ltd (t/a Mylan) [2016] EWCA Civ 410
The patent in suit was for a dosing regimen for use in emergency contraception, comprising 1.5 mg levonorgestrel taken as a single dose. The prior art disclosed the interim results of a clinical trial in which such a regimen was used but mistakenly referred to the dose as 1.5 g (not mg). Sales J held that it would have been immediately apparent to the skilled person that there was a mistake and it would have been obvious to consult the author of the prior art or one of the presenters of the interim data to find out the correct dose. The patent in suit was therefore invalid. [2014] EWHC 1666 (Pat)
The judgment was upheld on appeal. Sir Robin Jacob held that there was no logical distinction between a case where it was obvious to look something up and one where it was obvious to ask someone and clear that the answer would be given and would be clear. However the facts of the case were unusual – a clearly obvious error, a clear source to ask what the correct figure was and a clear finding not only that an answer would be given but that it would be unambiguous. It did not follow that the “skilled man would ask” route to obviousness would follow for cases where the facts were not so precise or sure. [2016] EWCA Civ 410
Piers Acland QC appeared for the Claimant. Michael Silverleaf QC appeared for the Defendant.