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Teva UK Limited and Teva Pharmaceutical Industries Limited v AstraZeneca AB UK, Patents Court, Neutral Citation Number: [2014] EWHC 2873 (Pat)

The UK Patents Court has held, in a judgment handed down on 9 September 2014, that European Patent (UK) No. 1 085 877, which concerned a treatment for asthma, was invalid on the ground of obviousness. This patent had previously been held to be obvious in the light of a prior art patent (the “1993 Patent”) in opposition proceedings in the European Patent Office.  That EPO decision was under appeal.

Teva contended that the 1993 Patent anticipated the patent in suit.  The judge (Sales J) held that the anticipation was not made out.  However, he held that the patent was obvious and that amended claims put forward by AstraZeneca would be invalid for both added matter and obviousness.

A peculiar and unusual feature of this case was that the judge substantially revised his judgment, which had been circulated to the parties in draft form prior to its public release, as is standard practice in the English High Court, when AstraZeneca pointed out that there was an error in his approach.  In his original findings, the judge found that the patent was obvious over the common general knowledge alone, when the case that had been advanced by Teva relied not on common general knowledge alone but on the 1993 Patent read in the light of the common general knowledge.


The judge therefore amended his judgment but without changing his conclusion. AstraZeneca argued that this was unfair and submitted that the judge should have rejected the obviousness challenge, since the judge had originally relied on the common general knowledge alone and not on the case actually advanced by Teva.  However, the judge stated that there had been no “reversal of any finding of fact” but “a modification in the analysis”.  The judge had only “undone the intellectual shortcut”  and it had always been “clear that some element of CGK was being relied upon, which would be more extensive or less extensive, depending on the court’s holding regarding the meaning of the 1993 Patent“.  In the judge’s view, it would have absurd, and deeply unfair to Teva, to reject a case on obviousness which the judge was satisfied had been properly made out at trial.

Read the decision here.

Headnote: Graham Burnett-Hall and Mélanie Chaurand, Marks&Clerk Solicitors