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Today we have a guest post from Suleman Ali of Holly IP and K2 on the subject of UK Pharma caselaw in 2013. This post was originally posted on the Holly IP blog IP Trends and is reproduced with the permission of the author. These points are gleaned from a talk by Neil Jenkins given at the CIPA Life Sciences Conference on 14 November 2013.
Malta, Spain and Virgin v Zodiac: Why ignoring the Malta problem will delegate the decision to the EPO
There has been a resurgence of Virgin v Zodiac in IP news recently, owing to a UK Court of Appeal Decision that upheld Mr Justice Floyd’s High Court decision in full (see, for example, Amerikat’s IPKat article here, and an Article in The Lawyer here [with which IPcopy heartily disagrees]).
Virgin v Zodiac was, of course, very important in overturning the Unilin principal relating to awards of damages. However, another important issue was caught up in this case, which is now catching the eyes of IP reporters, and which has some surprising relevance to Unified Patent Court matters: the UK patent that was the subject of this litigation should never have existed, and only came into being as a result of a procedural error made by the EPO’s Examining Division. Specifically, the Examining Division failed to notice that the Applicant had explicitly asked that the UK not be designated when the European application had been filed, and had erroneously given the application a European designation. (more…)
As IPcopy covered back in June last year, Spain has launched further attacks against the unitary patent system at the CJEU. There are several bases for the complaint including breach of the principles of autonomy and the issue of delegation of powers to the European Patent Office whose acts are not subject to judicial review.
At the always entertaining Wragge & Co. annual patent seminar in December last year, the Virgin v. Zodiac case that recently passed through the UK’s Supreme Court was discussed in the context of res judicata and the end of the Unilin principles. However, this case may also illustrate the issues that can arise when the EPO gets something wrong and there’s no means for appeal.
The Supreme Court case centered on Virgin Atlantic Airways Ltd’s attempts to recover damages exceeding £49 million (!) for the infringement of a European patent that no longer existed in the form said to have been infringed.
What is particularly interesting about the Virgin/Zodiac case in the context of the unitary patent system and Spain’s challenge to that system is that it relates to a patent that should never have had effect in the UK were it not for an administrative mistake by the EPO!