When re-litigating a patent may be permitted

In Resolution v Lundbeck, handed down on 12 April 2013, Arnold J has allowed a generic supplier company, Resolution Chemicals Ltd, to pursue its own revocation proceedings against Lundbeck’s SPC/GB02/049 protecting escitalopram, by way of challenge to the validity of its basic patent EP (UK) 0347066.

This is despite the fact that the validity of this patent had already been upheld in earlier litigation, in which one party was a member of the same corporate group as Resolution at the time, and two others belong to the same group as a company that Resolution now has commercial dealings with.

Can a party re-litigate a patent, or will they be estopped because they have a ‘privity of interest’ with a party to the decision of the earlier litigation? In this case, Arnold J has held that a party will be barred from relitigating for privity of interest if it has a “sufficient degree of identification” with the earlier litigants such that it is just to hold that the decision in the earlier case is binding on the re-litigant…

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