Teva v astrazeneca invalidating a patent with secret prior art

Prior to the AIA, this would have been a clear win for Teva.But, post-AIA, a Texas District Court ruled that the Helsinn patent was not invalidated by what would have historically been an on-sale bar.s.130(7) is also relevant Section 2 is so framed as to have, as nearly as practicable the same effect in the UK as the corresponding provisions of the EPC, ie Articles 54 and 55, PCT and CPC. An invention defined in a claim lacks novelty if the specified combination of features has already been anticipated in a previous disclosure.

teva v astrazeneca invalidating a patent with secret prior art-67teva v astrazeneca invalidating a patent with secret prior art-13teva v astrazeneca invalidating a patent with secret prior art-90teva v astrazeneca invalidating a patent with secret prior art-61

This infringement test is detailed by the Court of Appeal in General Tire & Rubber Company v Firestone Tyre & Rubber Company Limited, [1972] RPC 457, at pages 485-6:- If the prior inventor’s publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee’s claim if carried out after the grant of the patentee’s patent, the patentee’s claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated.

These are distinct concepts, each of which has to be satisfied and each of which has its own rules.

Prior disclosure is the first requirement to be satisfied for matter to anticipate an invention.

The prior inventor, however, and the patentee may have approached the same device from different starting points and may for this reason, or it may be for other reasons, have so described their devices that it cannot be immediately discerned from a reading of the language which they have respectively used that they have discovered in truth the same device; but if carrying out the directions contained in the prior inventor’s publication will inevitably result in something being made or done which, if the patentee’s patent were valid, would constitute an infringement of the patentee’s claim, this circumstance demonstrates that the patentee’s claim has in fact been anticipated.

The Court of Appeal applied this test in Glaverbel SA v British Coal Corporation [1995] RPC 255 where it was also held that it is not necessary for the prior art to be equal in practical utility or to disclose the same invention in all respects as the patent in suit.

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