Journal Article

‘The <i>Byzantine</i> logic of patent law jurisprudence’: patent protection for dosage regimes revisited

Eddy D. Ventose

in Journal of Intellectual Property Law & Practice

Volume 4, issue 6, pages 415-424
Published in print June 2009 | ISSN: 1747-1532
Published online April 2009 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpp048
‘The Byzantine logic of patent law jurisprudence’: patent protection for dosage regimes revisited

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Legal context

The question of whether patent protection extends to treatment or dosage regimes is an important one since patentees are continually seeking to find new and efficient methods of administering known pharmaceutical drugs. The Court of Appeal in Bristol-Myers Squibb seemingly rejected the view that such patents are allowable under the Patents Act 1977.

Key points

Actavis v Merck rejected the received learning of Bristol-Myers Squibb by first claiming that it contained no ratio to the effect that: (a) a novel, non-obvious dosage regime specified in a Swiss form of claim cannot make it novel and (b) such a claim is to a method of medical treatment. Secondly, if it was wrong on that point, the Court of Appeal accepted that since the EPO had a ‘settled view’ to the contrary, it was entitled (but not bound) to follow that view, even if it was inconsistent with Bristol-Myers Squibb.

Practical significance

Patents for treatment and dosage regimes are now available under the 1977 Patents Act. However, it is still an open question whether such patents are available under the Patents Act, as amended, to reflect the changes made under the EPC 2000.

Journal Article.  7733 words. 

Subjects: Arbitration ; Intellectual Property Law

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