Daniel Alexander QC and Mark Chacksfield appeared for the Respondent, Teva, in Boehringer’s application for permission to appeal a decision that its patent for formulating inhaler capsules for the drug tiotroprium bromide was invalid.
The patent concerned the use of hydroxypropyl methyl cellulose (HPMC) to enable a drier formulation of inhaler capsules than that obtainable with gelatine. At first instance the judge had found the patent invalid for obviousness, and had refused permission to appeal. The Court of Appeal had invited argument from both parties as to whether the proposition established in Pozzoli SpA v BDMO SA [2007] EWCA Civ 588 – that permission to appeal should be granted more readily in patent cases – should continue to apply.
The Court of Appeal held that the technical nature of patent actions did not sufficiently distinguish them from other similarly technical areas of law, such as claims in the Technology and Construction Court, so as to justify a different approach to applications for permission to appeal. The approach in Pozzoli that trial judges should be more ready to grant permission in patent claims should therefore no longer be followed.
In respect of Boehringer’s application, the Court held that there was no basis on which to interfere with the judge’s finding that both using HPMC to achieving a lower moisture content in inhaler capsules, and further drying the capsules below a 2% moisture content, would have been obvious at the priority date.