香港六合彩

香港六合彩 Faculty of Laws Institute of Brand and Innovation Law听brought together an unrivalled panel of international judges with an attentive audience made up of around 700 IP academics and patent professionals, including patent judges, barristers, solicitors and patent attorneys on 1 November 2017.

The topic of debate was the recent UK Supreme Court ruling in the patent infringement case:听Actavis UK Ltd v. Eli Lilly & Co听[2017] UKSC 48.

Actavis v. Lilly听addressed a long-standing, thorny issue in patent law. When faced with allegations that a patent is infringed, how much weight should be given to the actual language used in the claims which define the invention? Here, the European Patent Convention鈥檚 Protocol on interpretation requires courts to strike a balance between awarding 鈥渇air protection鈥� to the patentee while securing 鈥渁 reasonable degree of legal certainty for third parties鈥� by taking 鈥渄ue account鈥� of the equivalence of any variant adopted by the would-be infringer to an element specified in a claim. This weak attempt at harmonisation affords national courts across Europe latitude to treat 鈥榚quivalents鈥� differently. Inevitably, conflicting outcomes result.

Until this summer, UK courts applied the听Kirin-Amgen v. Hoechst听test established by the House of Lords in 2004. This required terms in patent claims to be construed by asking: 鈥渨hat would the skilled person understand the patentee to mean by the language used in the claim?鈥� Applying this approach, the High Court and Court of Appeal agreed that because Eli Lilly鈥檚 cancer treatment patent specified 鈥榩emetrexed disodium鈥�, it was not infringed by the Actavis variation which contained pemetrexed dipotassium, instead.

The UK Supreme Court, finding for the patentee, disagreed. To the surprise of many in the patent field, the Court concluded that the听碍颈谤颈苍-础尘驳别苍听approach was 鈥渨rong in principle.鈥� By placing such emphasis on the language used, the test tipped too much towards legal certainty. It failed to take 鈥渄ue account鈥� of equivalents, thereby denying patentees fair protection. A patent听should听cover immaterial equivalents which fall outside the 鈥榥ormal interpretation鈥� of the claim.

Acting as Chair, 香港六合彩鈥檚听Professor Sir Robin Jacob, posed pre-selected audience questions concerning the potential implications of this landmark decision to the eminent panel of:

鈥� Lord Neuberger of Abbotsbury, Former President of the Supreme Court of the UK

鈥� Lord Sumption, Justice of the Supreme Court of the UK

鈥� Professor Dr. Peter Meier-Beck, Presiding Judge of the German Federal Court of Justice

鈥� Judge Rian Kalden, Head of the IP Division, Court of Appeal, The Hague

鈥� Judge Kate O鈥橫alley, US Court of Appeals for the Federal Circuit

The event proved to be enlightening and good-humoured. Having discarded the established test, the Supreme Court judges on the panel went some way to allay the audience鈥檚 key concerns head-on, explaining why a new test was required to give proper effect to the European Patent Convention. As the ruling was clearly influenced by the approaches elsewhere which already apply a doctrine of equivalents, the judges on the panel from the USA, Germany and the Netherland were able to shed light on when and which 鈥榚quivalents鈥� might now be caught. Their answers seemed to indicate that extension of protection to 鈥渆quivalents鈥� was likely to be the 鈥渆xception鈥� and not become the 鈥渞ule鈥�.

Watch the full video of the event.

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