Author: David Wortley
7 July, 2017
Today, the UK Supreme Court (UKSC) has released a summary of its decision concerning alleged infringement of Eli Lilly & Company’s European patent EP1313508 (“the Patent”) by Actavis UK Limited and others.
The UKSC has decided that Actavis UK Limited’s pemetrexed diacid, dipotassium or ditromethamine products do directly infringe the Patent in the UK as well as in France, Italy and Spain. Furthermore, the UKSC dismissed Actavis’ cross-appeal on the basis that if its products did not directly infringe, they would indirectly infringe to the extent held by the Court of Appeal.
The finding of direct infringement is particularly significant as the claims of the Patent refer specifically to pemetrexed disodium whilst Actavis’ products are pemetrexed diacid, dipotassium and ditromethamine. Therefore, the decision should have significant implications regarding purposive construction of claims in the UK and the requirement to take into account equivalence of claim elements when determining the scope of claims under Article 69 EPC and the Protocol on Interpretation thereof.
The full judgment explaining the reasoning of the UKSC will be handed down on 12 July 2017. Our detailed report will then follow.