Using post-priority evidence to demonstrate lack of invention

The Court of Appeal has today handed down an important decision in Generics [UK] Limited t/a Mylan (“Mylan”) v Yeda Research & Development Co Ltd (“Yeda”) & Teva Pharmaceuticals Industries Ltd [2013] EWCA Civ 925. It concerns Yeda’s patent for a synthetic copolymer known as copolymer-1. Mylan had sought revocation of the patent and a declaration of non-infringement of their product, copaxone.

The first instance decision that the patent is valid and refusing the declaration of non-infringement has been upheld.

However, although it did not affect the decision, the Court of Appeal differed with the first instance judge, Arnold J, on a point of law that has general application to patents. This is whether evidence that post-dates the priority date of a patent may be used to show that the claimed invention actually made no plausible ‘technical contribution’. If there is found to be no technical contribution it follows that there can be no invention and the patent is invalid. The Court of Appeal has held that such post-dated evidence is admissible…

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