Andrew Lykiardopoulos QC, Tom Moody-Stuart QC and William Duncan acted for the respondents, Gilead, alongside Justin Turner QC, in this appeal concerning Idenix’ patent for anti-viral nucleoside analogues for use in treating Hepatitis C virus infection.
At first instance, the judge (Arnold J) had found the patent invalid for AgrEvo-type obviousness and insufficiency (both classical and “plausibility” type insufficiencies); that claim 4 as granted was invalid due to added matter; that proposed amendments to exclude certain substituents of the Markush formula of claim 1 would add matter; and that the Patent was also invalid for novelty over Gilead’s own PCT application.
Idenix appealed the judge’s findings in relation to obviousness, novelty, insufficiency and added matter of claims 4 and claim 1 as proposed to be amended. By its respondent’s notice, Gilead appealed the judge’s finding that claim 1 of the patent as granted did not add matter over the application.
The Court of Appeal dismissed Idenix’ appeal in its entirety, and upheld the judge’s findings in relation to obviousness, insufficiency and added matter, opting not to make a determination in relation to novelty as it was not necessary.