Setterwalls successfully acted for Teva in patent dispute at the Patent and Market Court of Appeal

The Patent and Market Court of Appeal confirmed the first instance court’s decision to revoke a patent for capsule formulations of the COPD drug tiotropium.

Setterwalls has represented the leading generic pharmaceutical company Teva in a patent dispute against Boehringer Ingelheim. Teva sued Boehringer Ingelheim for revocation of Boehringer Ingelheim’s patent for capsule formulations of the COPD drug tiotropium. Boehringer Ingelheim defended the patent in a number of alternative versions. The key issues in the patent dispute were whether the capsule formulations were inventive and whether the alternative versions of the patent claims added matter to or extended the scope of protection of the patent application as filed. After three years of preparatory proceedings and a seven day trial, the Patent and Market Court announced its judgment on 18 May 2018. The Court approved Teva’s action in every respect and revoked the relevant patent claims for lack of inventive step, added matter and extension of scope of protection. Boehringer Ingelheim appealed the judgment and the appeal trial was held in November 2019. The trial concerned questions about plausibility, whether patent applications may be invoked to show what was common general knowledge, inventive step and when an amended patent claim should be considered to add matter or extend the scope of protection. The Patent and Market Court of Appeal disagreed with some of the reasoning of the first instance court, but reached the same conclusion and therefore revoked the patent. The judgment, which may not be appealed, was announced on 31 January 2020.