Boehringer Ingelheim Pharma GmbH & Co. KG v. Teva Pharmaceuticals Europe B.V, Court of Appeal The Hague, The Netherlands, Case no. 200.208.036/Ol, with thanks to Otto Swens and Nadine Reijnders, Vondst, for sending in the case

The Court of Appeal confirms the first instance judgment that amended claims 6 up to an including 8 lack inventive step. The claims relate to a powder formulation of tiotropium for the treatment of lung disease COPD.

The patent according to the Court of Appeal does not teach that the moisture level of the capsule material should be below ‘ambient conditions’ and that this is achieved by means of an active drying step. The patent does not teach why the moist percentages mentioned in the claims as amended are relevant and therefore the values mentioned in claims 6 up to and including 8 are nothing other than arbitrary choices, that do not entail an inventive contribution to the state of the art.

A copy of the decision (in Dutch) can be read here.