Court of Appeal upholds levofloxacin patent and SPC
On 2 July 2009, the Court of Appeal in Generics (UK) Limited v Daiichi Pharmaceutical Co Ltd and another upheld the High Court’s decision that a patent on a chiral antimicrobial compound called levofloxacin was valid and so too was the supplementary protection certificate based on it. The appeal on validity was limited to obviousness over only one of the items of prior art cited at trial. Jacob LJ rejected the appellants’ submission (necessary given the Biogen approach to appeals – see Lord Hoffmann’s speech in Biogen v Medeva [1997] RPC 1 at p.45) that the trial judge had made an error of principle in holding that the invention was not obvious over that prior art. As for the SPC, that had been validly granted because levofloxacin was a new product for the purposes of the SPC Regulation. That regulation was sufficiently clear that there was no need to refer questions to the ECJ.
