MSD vs. Teva Pharmaceuticals: the average skilled manâs baggage
The Hague District Court, 25 April 2005, KG ZA 05-354. MSD Overseas Manufacturing versus Teva Pharmaceuticals Europe.
Patents. The requested relief of Merck cannot be allowed, because, as a provisional opinion, there is a realistic chance that the patent will be considered null and void during the proceedings on the merits, so that Merck, on this ground alone, cannot assert any claim against Teva under the supplementary protection certificate referred to above.
In the proceedings at hand Teva, in support of its defence that the patent must fail the inventive step test, invoked new documents, of which it has currently become plausible in preliminary relief proceedings that – different from what was argued by Merck during the oral hearing – they have not been (to a sufficiently knowable degree, at least one that can be considered relevant) discussed during the proceedings at the Board of Appeal. As a provisional opinion, these documents, particularly the publications of Fleisch and Felix, to be more closely indicated hereafter, are in the soon to be indicated context damaging to inventive step.
Read the entire judgment here (translation made available by Marc van Wijngaarden, Bird & Bird).
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