- Finding Vredo: the Dutch Supreme Court decision on escitalopram
- Journal of Intellectual Property Law & Practice
- Volume | Issue number
- 9 | 8
- Pages (from-to)
- Document type
- Faculty of Law (FdR)
- Institute for Information Law (IViR)
This article is about the pharma patent litigation sparked by Lundbeck's blockbuster drug for escitalopram. The article focuses on the trials and tribulations before the Dutch Patent Court of Appeal and the Supreme Court, while also briefly contrasting and comparing this with the decisions in Germany and the United Kingdom.
Particular attention is given to novel substances which can be fully envisaged but not yet made. Under the doctrine, set out by the Technical Boards of Appeal, such envisaged substance can still be considered to be non-obvious and therefore patented if the claimed method for preparing such substance is the first to achieve this in an inventive manner. The Dutch Supreme Court follows this doctrine.
The author criticizes the lack of explanation provided by the Supreme Court in reversing the decision of the Court of Appeal. By merely referring to foreign precedent, the Supreme Court violates its (own) duty to state (its own) reasons.
The article concludes by outlining the practical impact of the decision of the Supreme Court: inventors developing a (novel and) inventive process for obtaining a (novel) product which can be fully envisaged but not yet made, can obtain not only a process claim for inventing the process, but also monopolize the substance under a product claim.
- go to publisher's site
- A previous version also appeared in: Berichten Industriële Eigendom 2014/2 p. 41-45.
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