Tiotropium - UK

On Dec 16, 2016, the court of appeal (UK) denied the application by Boehringer Ingelheim Pharma GmbH & Co (Boehringer) seeking permission of the Court of Appeal to appeal a decision by Morgan J to revoke Patent (UK) 1 379 220 (the “Patent”) on the grounds that the Patent lacked an inventive step.

CPR 52.3(6) provides for what would seem to be a uniform and mandatory minimum standard for applications for permission to appeal:

“Permission to appeal may be given only where –

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.”

Floyd LJ reviewed the relevant authorities and revised the previous standard required for permission to appeal in patent cases. In the present case, the Patent was concerned with a capsule made of a certain moisture content to be used in a dry powder inhaler for delivery of the powdered active ingredient. Boehringer submitted that Morgan J had wrongly interpreted the evidence of the formulation expert and wrongly dismissed the moisture level as arbitrary.

However, Floyd LJ could see no basis for interfering with the judge’s findings of fact and held that the technical complexity of the background of a case was not a factor which trial judges should take into account in favour of granting permission to appeal. 28. He said that “this is a case where the applicant is seeking, illegitimately, to deconstruct the judge’s overall evaluative judgment on the issue of obviousness.  I do not think either ground has a real prospect of success.  I would refuse permission to appeal”.