In this case William Duncan appeared for the Claimant, led by Piers Acland QC of 11 South Square.
This action related to a patent for lacosamide; an anti-epileptic drug. Accord Healthcare Limited sought to invalidate the SPC protecting lacosamide, on grounds that the patent was invalid.
Accord challenged the entitlement of the patent to claim priority from a March 1996 priority document, and argued that the patent is obvious based on two items of prior art in conjunction with supplementary information obtained on an obvious literature search.
Birss J was asked to decide under US law, whether the inventor had correctly assigned the rights to the invention, including the right to claim priority. Accord contended that only the legal title and not the beneficial title had been assigned to the Defendant before the filing date of the patent. Birss J indicated his concern with the current state of the law relating to successor in title priority, but nonetheless continued to follow the KCI line of cases. The judge found that the Defendant was a bone fide purchaser for value under US law, and thus took title free of any equitable interests.
In relation to obviousness, the judge had no issue that an obvious literature search would be conducted and the materials reviewed. However he considered that even in light of the further materials turned up, there was not a sufficient expectation of success for the patent to be obvious.