UK Supreme Court Rules in Favor of Eli Lilly in Patent Infringement Case

Following last Friday's advance publication of the outcome of the case, the UK Supreme Court (UKSC) has today published the reasons for its decision in the long-running Actavis v. Eli Lilly case, ruling that Actavis's products infringe Lilly's patents in the UK, France, Italy and Spain.   Lilly's patent concerns the safe and effective use of a cancer drug, pemetrexed, in co-therapy with vitamin B12. Actavis's proposed products differed only in relation to the salt form of the pemetrexed, it was argued. Actavis sought declarations of non-infringement in relation to the UK, French, German, Italian and Spanish patents in the UK courts.    Actavis removed the German patent from the UK litigation in 2014. The Court of Appeal refused to grant the declarations sought by Actavis on the grounds that Actavis' proposed products would indirectly infringe Lilly's patent. However, the Court of Appeal found that the patent would not be directly infringed.   Emma Fulton, one of the Hogan Lovells lawyers leading the case, commented: "Today's decision puts more emphasis on considering the invention in the patent when assessing whether a competitor infringes. It also brings UK law more closely in to line with the law in other key European countries."   As well as overturning the Court of Appeal's decision on direct infringement, the Supreme Court has upheld the Court of Appeal's decision on indirect infringement.

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