Richard Meade QC and Isabel Jamal appeared for the Respondent, Hospira, in this appeal against the revocation of Cubist’s patent at first instance.
The patent concerned a method of purification for the antibiotic daptomycin. The Judge had found that the patent was obvious in light of the teaching of a piece of prior art which described the purification of a surfactant. In doing so he found that the skilled person would have known, or expected, daptomycin to be a surfactant, would have tested it to confirm it was a surfactant and would have then applied the technique described in the prior art, with one obvious modification, to daptomycin.
The appeal brought by Cubist focussed on the Judge’s application and assessment of the skilled person’s expectation of success in relation to a) daptomycin being a surfactant and b) the modification of the prior art technique held to be obvious by the Judge. The Court of Appeal held that the Judge had not erred in his findings or in his application of the principles relating to expectation of success, and upheld the finding of obviousness.