Tom Moody-Stuart KC appeared for the Claimant (Pfizer) and Dr Justin Turner KC appeared for the Defendant (GSK) in an action concerning vaccines for respiratory syncytial virus (RSV).
The proceedings concerned two GSK patents – EP 258 and EP 710. Both of these related to a vaccine for RSV. Pfizer brought these proceedings in an attempt to clear the way for the commercial launch of its own RSV vaccine in the UK. It asked the court to revoke the GSK patents and to make an “Arrow declaration” that, at the priority date, it was obvious to make an RSV antigen resembling the prefusion conformation and to use it in the prevention of RSV-associated diseases. Mr Justice Mellor found both patents to be invalid for obviousness over the prior art relied upon by Pfizer. He held that even if the patents were valid, Pfizer’s RSV vaccine product would not have infringed the patents. He also granted the Arrow declaration sought, noting that it would provide commercial certainty and protect the claimant’s legitimate business interests in the UK. Mr Justice Mellor made observations as to when reliance upon secondary evidence in relation to inventive step should be pleaded. The Court also made observations about the approach to the instruction of experts where the patents were directed to a skilled team.