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On appeal from [2015] EWCA Civ 555; [2015] EWCA Civ 556.

This appeal considered whether a new pemetrexed based cancer treatment produced by Actavis UK Ltd & others infringes Eli Lilly & Co’s patent and its foreign designations either indirectly under the Patents Act 1977, s 60(2) (matter for appeal) or directly under a proper interpretation of the Europe Patent Convention 2000, art 69 (matter for cross-appeal). The Supreme Court unanimously allowed Lilly’s appeal, holding that the Actavis products would infringe the Patent in the United Kingdom, and in France, Italy and Spain. Actavis’ cross-appeal was unanimously dismissed, with the Court holding that, if its products would not directly infringe, they would indirectly infringe as held by the Court of Appeal.

The Court held that, whether an item directly infringes a patent is best approached by addressing two questions through the eyes of the notional addressee of the patent:
1. Does the item infringe any of the claims as a matter of normal interpretation; and if not,
2. Although the item may be characterised as a variant, does it nonetheless infringe because it varies from the invention in a way which is immaterial?
If the answer to either question is “yes”, there is an infringement; otherwise there is not.

In the instant case, the Court found that the Actavis products directly infringe the Patent as they all involve a medicament containing the pemetrexed anion and vitamin B12, and achieve substantially the same result in substantially the same way as the invention.

For judgment, please download: [2017] UKSC 48
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (4 Apr 2017 morning session) (4 Apr 2017 afternoon session) (5 Apr 2017 morning session) (5 Apr 2017 afternoon session) (6 Apr 2017 morning session) (6 Apr 2017 afternoon session)