What constitutes a threat to infringe a patent? Is the mere receipt of a marketing authorisation enough? Those were the questions raised by this matter. MSD is the owner of a patent and an SPC relating to Efavirenz, an anti-AIDS drug. Upon the receipt of an MA by Mark’s client, Teva, MSD wrote requesting confirmation of Teva’s commercial position and for undertakings to be provided. Teva refused to answer these questions, since the information as to its future commercial plans was highly confidential. MSD subsequently sought an interim injunction, and Teva cross-applied to strike out the claim on the basis that there was no threat to infringe the patent. The arguments traversed the policies behind the Bolar provisions, patent linkage and the case law of the UK and numerous other European jurisdictions. Ultimately the Judge held against Teva, although reserving costs until the trial. The matter is now proceeding towards a final hearing.
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