In March 2009 Michael Tappin appeared as junior counsel for Napp at the first instance hearing and as lead counsel in the Court of Appeal. Mark Chacksfield acted for Sandoz. The patent in suit was for a controlled release formulation of an analgesic called Oxycodone, a drug that had commonly known for many years. Napp brought a claim against Sandoz and Ratiopharm for infringement of its patent in relation to controlled release formulations of Oxycodone which they had put on the market. Sandoz and Ratiopharm brought a counterclaim against Napp claiming that the patent was invalid for obviousness, lack of novelty and added matter. Napp successfully defended the invalidity attacks however the Judge at first instance held that the patent was not infringed by the Sandoz/Ratiopharm products. Both sides appealed to the Court of Appeal. Napp brought appealed the Judge’s findings on construction of the patent and Sandoz and Ratiopharm brought a cross appeal in relation to added matter and obviousness. The primary issue in relation to added matter was the extent to which the case of PPG/Disclaimer (G1/03) laid down a further test for establishing whether a disclaimer added subject matter. The Court of Appeal held that G1/03 did not add any extra criterion in relation to disclaimers and added matter and as such that the disclaimer in the patent in suit did not add matter. The appeal on construction was allowed and the cross appeal dismissed, and as such the patent was held to be valid and infringed.
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