Angiotech vs. Sahajanand: Infringing stent, research exception, no moratorium
The Hague District Court, HA ZA 05-2016, 3 May 2006, Antiotech Pharmaceuticals Inc. and Boston Scientific Corporation versus Sahajanand Medical Technologies PVT. Ltd.
Patent law. Angiotech and Boston Scientific are of the opinion that the Infinnium stent by Sahajanand falls under the protection of the patent, and claim a ban on infringement with ancillary claims, amongst others a to be imposed moratorium of three years against the use of in the Netherlands illegally gained research data for the purpose of a request for a CE-authorisation.
4.25 (…) However, for there to be an insufficient level of inventiveness the average skilled person should be induced according to settled case-law to use taxol. This means that with the expectance that it (might) prevent restenosis he would have chosen taxol as a result of the pointers in the state of the art. However, one should take into account in this that the average skilled person may be expected to carry out some (routine) research work to optimize known art, and so a selection from a rather limited group of medicines – assuming that the testing of these medicines as such do not involve any special problems for the skilled person or that there is overcoming a prejudice – may produce insufficient level of inventiveness, even if such selection produces an optimum result.
4.45. Sahajanand’s Infinnium stent falls under the scope of protection of claims 6 and 12 of the patent, whereas the invalidity defenses challenging this do not hold. Sahajanand’s import and supply for the sake of the SIMPLE 2 trial constituted infringement of the patent rights of Angiotech et al. Furthermore there is a threat of infringement, and so the court declaration and the injunction are allowable. Which purpose the moratorium of three years also claimed might serve is not immediately clear, but assuming that this should become effective after expiry of the patent protection the court considers that it has not become sufficiently clear in the present proceedings that the results of any infringing act in this country (more specifically of the SIMPLE 2 trial) were used for the grant of the CE-marking, let alone that is has become sufficiently clear that without these results no CE-marking would have been granted. On the latter point it should be borne in mind that is has been established that for only 16 patients of the total of 385 (282 in SIMPLE 1 and 103 in SIMPLE 2) there were infringing acts here, whereas it has not become clear that and why the results concerning the other 369 patients – if used – were not sufficient to obtain a CE-marking. Nor can it be understood which purpose an injunction to use the data of the SIMPLE 2 trial in advertising or in sale might serve, seeing that in the Netherlands the stents are no longer allowed to be sold or offered as a result of the general infringement injunction to be allowed in 1 and the injunction concerning such data would only regard the Netherlands as a result of the jurisdiction judgment.
Read the entire judgment here.
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