Eli Lilly v Human Genome Sciences [2014] EWHC 2404

Michael Tappin QC again acted for HGS in this latest episode of its long-running battle with Eli Lilly. Lilly had challenged the validity of HGS’s patent but failed in the Supreme Court and (on the some outstanding issues) in the Court of Appeal. Lilly then sought a declaration that any SPC granted to HGS based on HGS’s patent and any marketing authorisation granted to Lilly for its tabalumab antibody would be invalid. The ground which Lilly ultimately pursued was that tabalumab was not “protected by” HGS’s patent within the meaning of Art. 3(a) of the SPC Regulation. Warren J had referred the interpretation of Art. 3(a) to the CJEU and then had to interpret and apply its judgment. He gave judgment for HGS, holding that the effect of the CJEU’s judgment was that tabalumab was “protected by” HGS’s patent.