Les Laboratoires Servier and Another v Apotex Inc. and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,Lord Justice Keene |
| Judgment Date | 09 July 2007 |
| Neutral Citation | [2007] EWCA Civ 783 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 2007 |
| Docket Number | Case No: C5/2007/1483 |
[2007] EWCA Civ 783
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE PUMFREY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jacob and
Lord Justice Keene
Case No: C5/2007/1483
Mr I Purvis QC and Mr A Lykiardopoulos (instructed by Messrs Bristows) appeared on behalf of the Appellant.
Mr A Watson QC and Ms H Mensah (instructed by Messrs Taylor Wessing) appeared on behalf of the Respondent.
This is an application for continuation of an injunction pending the hearing of an appeal. The appeal will be from a decision of Pumfrey J. The decision currently remains embargoed but has been handed down in draft to the parties a little while ago, I think in late June. By his decision he held that Servier's patent No. 1 296 947 was invalid for obviousness and anticipation. There had been running, until he gave judgment, an interlocutory injunction granted by Mann J. Following his decision the injunction would cease. The patentees sought permission to appeal. The judge indicated that he did not think the appeal would have a reasonable prospect of success but following the guidance which he understood to come from the recent Pozzoli case granted permission nonetheless. So there is to be an appeal if it is pursued. The question is: what is to be done meanwhile? The judge took the view that the normal Cyanamid rules would apply to a pending appeal and that he, having formed the view that there was no reasonable prospect of success, the patentees failed at the first hurdle on Cyanamid.
He granted a very short temporary injunction so the matter could be taken to this court. Mr Purvis, who appears for the patentees, accepted that the judge's approach, namely Cyanamid, is applicable for the situation when there is an appeal pending as when there is a trial pending. He therefore sought to persuade us that there was a real prospect of success on appeal. He took three separate points. First, he said the judge was inconsistent with his approach to construction of the claim. He said that the claim was in effect to a crystalline substance having a certain x-ray diffraction pattern as set out in the claim but that that approach had not been followed by the judge when considering some of the experimental results. These results were not exactly consistent with the claim but were certainly inconsistent with the other known forms of the crystalline substance. He said that the judge misapproached the question of construction by taking into account the two other known crystalline forms when they could not have been known at the date of the...
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