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CIPLA WINS PATENT BATTLE OVER F. HOFFMANN-LA ROCHE LTD
NICHOLAS PIRAMAL GETS INJUNCTION IN
Analysis: - Piramal is a registered proprietor of
mark "ESGIPYRIN' and the trade mark has been
registered on January 22, 1974. The defendant is
engaged in a deliberate, dishonest and fraudulent
act of, counterfeiting and is passing of their products
as that of the plaintiff. In case of Laxmikant V. Patel
Vs. Chetanbhai Shah reported in (2002) 3 SCC
page 65 in paragraph 14 it was specifically held
that "it is the usual practice to grant ad-interim
relief in the nature of injunction once a case of
infringement of trade mark is made out".
A Court of Appeal for England and Wales on October 18, 2007 dismissed appeal in Re. Novartis vs IVAX in a suit relating to Novartis cyclosporine formulation. Novartis had sued IVAX alleging infringement of its two UK patents No. 2,222,770 (the '770 patent) and 2,380,674 (the '674 patent). Both the patents related to a formulation of cyclosporin. The '770 patent was directed towards a pharmaceutical composition comprising a cyclosporin as active ingredient in the form of a "microemulsion pre-concentrate". Typically, a formulation according to the '770 patent comprised a hydrophilic phase; a lipophilic phase, and a surfactant. The '674 patent provided a composition in form of an emulsion or micro-emulsion pre-concentrate for oral administration comprising a cyclosporine or macrolide, and a carrier medium comprising a second component, a lipophilic component and a surfactant. Novartis, claimed to have overcome the existing problems due to use of alcohol based formulation such as bioavailability issues, by developing formulation as described in the '770 and the '674 patents.
IVAX planned to introduce a cyclosporin formulation in the UK under the trade name EQUORAL. IVAX's EQUORAL product was a 100mg/ml oral solution and 25mg, 50mg and 100mg soft gelatine capsules. The oral solution was intended for dispersion in a drink, and the capsules to be swallowed.
Mr. Justice Pumfrey of the Patents Courts considered the issue of infringement and validity of both the patents. The trial court noted that although there were micro-emulsion-sized particles in the EQUORAL dispersion, that dispersion was not a micro-emulsion and therefore could not infringe the Novartis patent. On the validity, the trial court held the ‘770 patent was valid but the ‘674 patent was invalid due to obviousness. Novartis appealed against the decision of non-infringement of the ‘770 patent arguing too narrow claim construction. IVAX argued that if the ‘770 patent covered EQUORAL, the ‘770 patent would be invalid. The Court of Appeal dismissed the appeal noting that EQUORAL was mainly comprised of all that Novartis was actually trying to avoid since at least 86% of the active ingredient was carried by particles that were larger than micro-emulsion size.
CIAS, Inc. (formerly Currency Identification & Analysis Systems) sued Alliance Gaming Corporation and its subsidiary Bally Gaming, Inc. (collectively Alliance) alleging infringement of U. S. Patent No. 5,283,422 (the ‘422 patent), entitled "Information Transfer and Use, Particularly with Respect to Counterfeit Detection". Both CIAS and Alliance are in the business of systems for the detection of counterfeit usage. CIAS alleged that the Alliance detection systems for tickets used in casino slot machines (known as the Slot Data System (SDS) and Slot Management System (SMS)) infringed the ‘422 patent, literally or under the doctrine of equivalents. Alliance moved for summary judgment of non-infringement on the ground that the Alliance systems did not infringe any claim of the '422 patent when properly construed. The trial court agreed with Alliance. On appeal, the CAFC concluded that although the District Court erred in its construction of the term "comprised of", that error did not affect the construction of the substantive terms supporting the judgment of non-infringement and therefore affirmed the judgment of the trial court.
One of the key issues in this case was construction of the phrase “comprised of”. The District Court observed that the meaning of "comprised of" was not clearly resolved in patent-specific precedent, and therefore held that the "ordinary and customary meaning" should be used. The District court ruled that "comprised of" does not have the same open-ended meaning as "comprising”, and that "comprised of" should be construed as a closed-end term that excludes the presence of all elements beyond those presented in the "comprised of" clause. Thus the District Court construed "comprised of" as "a limiting description of composition," reasoning that such construction preserved the distinction between “comprised of” and “comprising”. The CAFC disagreed with the trial court on such construction observing that the term “comprised of” is an open-ended transition phrase. The CAFC further noted that the usual and generally consistent meaning of "comprised of," when it is used as a transition phrase, is, like "comprising," meaning that the ensuing elements or steps are not limiting. The conventional usage of "comprising" generally also applies to "comprised of." Alliance argued that several judicial decisions have used "comprised of" to mean "consists of." However, the CAFC noted that these rare usages did not remove from "comprised of” its conventional meaning when used as a transition term. Distinguishing over the Glaxo Grp. Ltd. v. Apotex, Inc. (376 F.3d 1339, 1343 (Fed. Cir. 2004), the CAFC observed that in the Glaxo case, the usage of "comprised of" was not as a claim transition term, but was the court's description of the defendant's product. Citing several cases, the CAFC concluded that “Correctly construed, comprised of does not of itself exclude the possible presence of additional elements or steps” (Decided September 27, 2007).
Daiichi sued Apotex in the U. S. District Court for the District of New Jersey following Apotex’s paragraph IV ANDA for generic Ofloxacin ear drop certifying that Daiichi’s U.S. Patent No. 5,401,741 (the ‘741 patent) was invalid and/or not infringed. Following a Markman hearing and a bench trial, the District Court concluded that the ‘741 patent was not invalid. The court also found that Daiichi did not intend to deceive the Patent and Trademark Office during prosecution of the ‘741 patent. Finally, because Apotex stipulated that the subject matter of its ANDA fell within the scope of the claims of the ‘741 patent, the court found that Apotex infringed the ‘741 patent. Apotex appealed and the CAFC reversed the judgment of the trial court.
One of the key issues in this case was determination of who could be the “ordinary person skilled in the art”? The ‘741 patent related to a method for treating bacterial ear infections by topically administering the antibiotic Ofloxacin into the ear. Claim 1 of the ‘741 patent was directed to a method for treating otopathy which comprises the topical otic administration of an amount of Ofloxacin or a salt thereof effective to treat otopathy in a pharmaceutically acceptable carrier to the area affected with otopathy.
The District Court concluded that the ordinary person skilled in the art pertaining to the ‘741 patent “would have a medical degree, experience in treating patients with ear infections, and knowledge of the pharmacology and use of antibiotics. This person would be . . . a pediatrician or general practitioner—those doctors who are often the ‘first line of defense’ in treating ear infections and who, by virtue of their medical training, possess basic pharmacological knowledge.” Apotex disagreed and argued that the District court erred in this determination and that one having ordinary skill in the relevant art could be properly defined as “a person engaged in developing new pharmaceuticals, formulations and treatment methods, or a specialist in ear treatments such as an otologist, otolaryngologist, or otorhinolaryngologist who also has training in pharmaceutical formulations.”
The CAFC noted that several factors may have to be considered in determining level of ordinary skill in the art such as including: (1) the educational level of the inventor; (2) type of problems encountered in the art; (3) prior art solutions to those problems; (4) rapidity with which innovations are made; (5) sophistication of the technology; and (6) educational level of active workers in the field. The CAFC observed that the art involved in the ‘741 patent was the creation of a compound to treat ear infections without damaging a patient's hearing. This would have required, and also described in the written description details, the inventors’ testing Ofloxacin on guinea pigs and their findings that ototoxicity did not result from the use of their compound. Such animal testing, the CAFC noted, is traditionally outside the realm of a general practitioner or pediatrician. The CAFC also considered that although a general practitioner or pediatrician could (and would) prescribe the invention of the ‘741 patent to treat ear infections, he would not have the training or knowledge to develop the claimed compound absent some specialty training such as that possessed by inventors of the ‘741 patent. Accordingly, the CAFC concluded that the level of ordinary skill in the art of the ‘741 patent was that of a person engaged in developing pharmaceutical formulations and treatment methods for the ear or a specialist in ear treatments such as an otologist, otolaryngologist, or otorhinolaryngologist who also had training in pharmaceutical formulations. On the issue of obviousness, the CAFC held that the invention of the ‘741 patent would have been obvious to one having ordinary skill in the art at the time of the invention. (Precedential Opinion Issued: September 12, 2007).
Pfizer, the plantiff has filed a passing off case against the defendant company in order to restrain it from using trademark“PIFER, PIFOL or PIFSER” or any other trademark that is deceptively similar to plaintiff’s trademark “PFIZER” with regard to pharmaceutical products. The present application filed by the plaintiff seeking amendment of plaint addressed issues of equity however the Delhi High Court denied the amendment of plaint on the ground that
US patent law says that “No infringement occurs when a patented product is manufactured and sold in a foreign land.” There is an exception to this rule. If components are supplied from US to a foreign country and are assembled outside the US, it does not constitute infringement according to Section 271(f) of the US Patent Act.
The Novartis patent case is the first Indian patent litigation that came up after the Indian Patent (Amendment) Act 2005 was given effect. It is drafted in compliance with the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) and considering the flexibilities allowed in TRIPS.
Novartis argued that patents are necessary to recover investments in research and development and thus help in introducing innovative medicines. The Gleevec patent would not hinder the supply of essential medicines to poor countries because of the safeguards to the TRIPS Agreement. It highlighted that the patent was already granted in nearly 40 countries where it reached 22,000 patients. Further it also cited the Mashelkar Committee Report (now withdrawn) to support its claim that the Indian patent law was not TRIPS compliant.
Wireless technology giant, Qualcomm known for its strong patent portfolios on wireless technology (including micro-chips) has taken on the world's biggest handset vendor, Nokia. Qualcomm holds a number of crucial third generation (3G) patents on mobile phones that are keys to internet and video reception on mobile phones and has become mobile phone standards. Some of these patents owned by Qualcomm cover both code-division multiple access 2000 (CDMA 2000) and also wideband code-division multiple access (WCDMA), technologies. The WCDMA is a GSM based technology preferred by GSM based mobile set manufacturers over CDMA sets.
MOTOROLA SUED BY APPLE OVER LICENSING WIRELESS PATENTS
RAMBUS AND NVIDIA SIGN PATENT LICENSE AGREEMENT
FILM 'JODI BREAKERS' IN COPYRIGHT INFRINGEMENT CASE