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Resolution Chemicals v H Lundbeck A/S [2013] EWCA Civ 924

Case Summary  |  Judgment  |  31 July 2013

 

Michael Tappin QC and Mark Chacksfield recently appeared in the Court of Appeal acting for the successful respondent in Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 924. The appeal was brought against the decision of Mr Justice Arnold, in which he held inter alia that Resolution was not estopped from bringing an action to invalidate Lundbeck’s SPC for escitalopram by reason of privity of interest with Arrow Generics, a company that had previously challenged the validity of the patent on which the SPC was based.

The Court of Appeal rejected the suggestions that the judge had made an error in law, and considered that, on the facts, which were largely unchallenged on appeal, Resolution did not have a sufficient interest in escitalopram at the time of the previous litigation to make it just that it should be bound by its result. They considered that the matters relied upon by Lundbeck were too speculative to amount to a sufficiently concrete interest.

The Court of Appeal also concluded that the same result arose applying the broad merits-based approach from Johnson v Gore Wood.

Accordingly the Court of Appeal dismissed Lundbeck’s appeal in its entirety.