Court : House of Lords
LORD PHILLIPS OF WORTH MATRAVERS My Lords, 1. I have had the benefit of reading in draft the speeches of each of your Lordships. They reach the same conclusion for the same reasons. I share both the conclusion and the reasoning and would, accordingly, dismiss this appeal. LORD SCOTT OF FOSCOTE My Lords, 2. Section 1(1) of the Patents Act 1977 lays down four conditions that must be satisfied if a patent for an invention is to be granted. The first of these is that “the invention is new". This condition is easy enough to understand if the invention is a process whereby something or other can be made or done. But I find it less easy to understand if the claimed invention is of a chemical product where, as here, the existence of the product is known, its chemical and molecular structure is known and, up to a point, its characteristics are known. The present case concerns a claim to a product patent. The product is the (+) enantiomer of citalopram. Citalopram is an organic compound,...
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LORD HOFFMANN My Lords, The proceedings 1. Kirin-Amgen Inc ("Amgen"), a Californian pharmaceutical company, is the proprietor of a European patent (EP 0148605B2) relating to the production of erythropoietin ("EPO") by recombinant DNA technology. EPO is a hormone made in the kidney which stimulates the production of red blood cells by the bone marrow. The discovery by Amgen of a method of making EPO artificially for use as a drug was a significant advance in the treatment of anaemia, particularly when associated with kidney failure. Amgen market it under the name Epogen and the patent (which will expire on 11 December 2004) has been very profitable. 2. These appeals arise out of a dispute concerning both the validity and infringement of the patent between Amgen and two other pharmaceutical companies. Transkaryotic Therapies Inc ("TKT") is a Massachusetts corporation. It has also developed a method of making EPO, which it markets under the name Dynepo. It uses a process which it calls "...
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LORD HOFFMANN My Lords, 1. Twenty years ago some scientists in the Department of Chemical Immunology at the Weizmann Institute of Science in Israel were experimenting with forms of chemical treatment for cancer. They were trying to combine two different forms of treatment to obtain a synthesis which was more effective than either on its own. One was the use of monoclonal antibodies to bind to epidermal growth factor (EGF) receptors, which are often abundant on the surface of cancer cells. These antibodies are cytostatic, that is, they inhibit the growth of the cancer cells but do not kill them. The other treatment was the use of anti-neoplastic drugs which are cytotoxic, that is, they kill cancer cells. But their disadvantage is that they kill healthy cells as well. Their toxicity to healthy cells limits the doses in which they can be administered. 2. The Weizmann scientists say that their first idea was to try an antibody which was conjugated, that is, chemically coupled, to an anti-...
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LORD BINGHAM OF CORNHILL My Lords, 1. In December 2002 the appellant, the Mersey Care National Health Service Trust, as managers of Ashworth Hospital, implemented a written policy governing the seclusion of patients detained at the hospital. The issue in this appeal is whether that policy is unlawful, either because it is inconsistent with the domestic law of England and Wales or because it fails to comply with the European Convention on Human Rights. Sullivan J at first instance held the policy to be lawful in both respects: [2002] EWHC 1521 (Admin). For reasons given in a judgment of the court delivered by Hale LJ, the Court of Appeal (also including Lord Phillips of Worth Matravers MR and Latham LJ) declared the policy to be unlawful: [2003] EWCA Civ 1036, [2004] QB 395. In this appeal the Trust challenges that decision. Its legal submissions are supported by the Secretary of State for Health as an interested party. Mr Colonel Munjaz seeks to uphold the Court of Appeal decision. His...
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LORD SCOTT OF FOSCOTE My Lords, 1. I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond and am in full agreement that, for the reasons they give, this appeal should be dismissed. There are two matters, however, on which I want to add a few words of my own. In doing so I gratefully adopt and need not repeat Baroness Hale’s outline of the facts and of the relevant legislative background to the issues. 2. The first matter on which I want to comment is the locus standi of the respondent, the adult daughter of Mrs Savage, the deceased, to have instituted the action that has led to this appeal. Following Mrs Savage’s self-inflicted death, an inquest was held into the causes and circumstances of her death. The inquest was held in public, the investigation by the coroner into the circumstances and causes of the death was a full one - no one has suggested that it was in any re...
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LORD BINGHAM OF CORNHILL My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in complete agreement with it, and for the reasons she gives would allow the appeal and make the order which she proposes. LORD STEYN My Lords, 2. I have read the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it. I would also make the order which she proposes. LORD PHILLIPS OF WORTH MATRAVERS My Lords, 3. I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. For the reasons which she gives I also would allow the appeal and make the order which she proposes. BARONESS HALE OF RICHMOND My Lords, 4. The issue in this case is whether a patient detained for treatment under the Mental Health Act 1983 can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he...
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LORD NICHOLLS OF BIRKENHEAD My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow this appeal and dismiss the cross-appeal. LORD HOFFMANN My Lords, 2. SABAF Spa ("SABAF") was the proprietor of a United Kingdom patent GB 2,100,411 for a burner for gas cookers and hobs. The application was filed on 12 June 1981 and the patent expired on 11 June 2001. In these proceedings it alleges that Meneghetti Spa ("Meneghetti") infringed the patent during its term by importing infringing products into the United Kingdom. Meneghetti counterclaims for a declaration that the patent was invalid because the invention was obvious. Laddie J held that Meneghetti had imported the products but that the patent was invalid. The Court of Appeal (Peter Gibson, Jonathan Parker and Longmore LJJ) [2002] EWCA Civ 976; [2003] RPC 264 held that the patent was valid but that Meneghetti had not import...
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LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it, and I also agree with the comments of my noble and learned friend Lord Walker of Gestingthorpe. For the reasons that Lord Neuberger gives I would allow the appeal and make the order that he proposes. I gratefully adopt his description of the factual background and his analysis of the issues that were before the courts below. 2. This is, as Mummery LJ observed in the Court of Appeal [2008] Bus LR 1123, para 34, an extremely unusual case. One of its most striking features is Matthew Fisher’s extraordinary delay in making his claim for a share of the musical copyright. In para 82 of his judgment Mummery LJ described the fact that Mr Fisher had waited for 38 years, with knowledge and without reasonable excuse, as unconscionable behaviour. Another, which is really a product of the first, is the fact that his claim is...
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LORD HOFFMANN My Lords, 1. Angiotech Pharmaceuticals Inc, a Canadian company, and the University of British Columbia are joint proprietors of European patent 0 706 376 which claims, among other things, a stent coated with taxol for “treating or preventing recurrent stenosis". For convenience I shall call the patentees Angiotech. Conor Medsystems Inc (Conor), an American competitor, applied in both the United Kingdom and the Netherlands for revocation of the patent on the ground that the claimed invention was obvious. In the United Kingdom, before Pumfrey J and the Court of Appeal (Mummery, Tuckey and Jacob LJJ), it succeeded. In the Netherlands, before the District Court of The Hague (Robert van Peursem, Edgar Brinkman and Walter van Straalen) it failed. Angiotech appeals to your Lordships’ House and says that the Dutch court was right and that the patent should be declared valid. 2. Since the decision of the Court of Appeal, Angiotech and Conor have reached a settlement. C...
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LORD NICHOLLS OF BIRKENHEAD My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would dismiss this appeal. LORD HOFFMANN My Lords, 2. This appeal arises out of an action raised by Mr Nigel Buchanan, the registered proprietor of UK Patent GB 2 287 321 ("for a fluid boiling point measuring device"), against Alba Diagnostics Ltd ("Alba") alleging infringement by the manufacture and sale of an implement called the Brake Fluid Tester. Alba denies infringement but takes the preliminary point that Mr Buchanan has no title to sue, having assigned his rights in the patent in suit ("the 321 patent") to a Mr Mills, who in turn assigned them to Alba. The Lord Ordinary (Lord Hamilton) and the Inner House (the Lord President (Rodger) and Lords Marnoch and Clarke) were unanimously of the opinion that the preliminary point was well founded and although they went on to find that Alba's devic...
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