Secretary of State for Health and Others v Servier Laboratories Limited and others, UK, High Court, Roth J, 2 August 2017

If a patentee makes unsupported allegations in enforcement or invalidity proceedings which result in losses to third parties, can that amount to the tort of causing loss by unlawful means?

These proceedings concerned an application by Servier Laboratories and related subsidiaries (“Servier”) to strike out an allegation that Sevier’s actions in relation to an attempt to enforce European Patent EP 1 296 947 (“the Patent”) amounted to the tort of causing loss by unlawful means.

In August 2006 Servier obtained an interim injunction in the UK which prevented the sale of a generic version of a treatment for hypertension. Subsequently when the case came to a full trial in 2007 the Patent was found by the UK Courts to be invalid for lack of novelty and/or lack of inventive step. The Patent was also found to be invalid by the EPO and was revoked across Europe by a decision of the Board of Appeal in 2009.

The present proceedings were initiated by the UK government for the losses caused to the National Health Service arising from a series of agreements between Servier and various generic drug manufacturers to delay entry into the market of generic versions of drugs covered by the Patent.

In part it was alleged that Servier’s actions in enforcing the Patent and defending the EPO opposition amounted to the tort of causing loss by unlawful means since it was alleged that Servier had made allegations in the earlier court proceedings and in the EPO opposition about the validity the Patent which Servier knew were untrue and that Servier had therefore obtained, defended and enforced the Patent through deceit and that generic entry onto the market had been delayed as a direct result of that deceit.

In his judgement granting Servier’s application to strike out the allegation, Roth J reviewed the earlier case law relating to causing loss by unlawful means. Previously in OBG Ltd v Allen [2007] UKHL 21, Lord Hoffman had defined the tort of unlawful means as consisting of acts intended to cause loss to a claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant.

The judge focused on the first of the above requirements – the need to establish the existence of the use of unlawful means towards a third party – and concluded that the case law identified that the acts in question had to be acts which interfered with a third party’s freedom to deal with a claimant. On the facts no such interference was established since none of the alleged acts could be said to have interfered with the freedom of the claimant to deal with Courts or the EPO. The Judge therefore granted Servier’s application and the allegation was struck out.

The judgment can be found here.

Headnote: Nicholas Fox, Simmons & Simmons LLP