Cephalon v Orchid & Mylan

Case Summary  |  Judgment  |  24 June 2011

Michael Tappin QC and Adrian Speck acted for the defendants in successfully resisting an application by the claimant patentees for an interim injunction to prevent launch of a generic modafinil product.  In recent years, patentees in pharmaceutical cases have generally succeeded in obtaining interim injunctions to prevent generic launch, but Michael and Adrian persuaded Mr Justice Floyd that the balance of convenience lay against the grant of an injunction: [2010] EWHC 2945.  Michael and Adrian then acted for Mylan at the trial of the claim.  Mr Justice Floyd held that while the claim language literally covered the generic product, the skilled person would understand the claims differently, such that the generic product did not infringe.  He also held that the claims were obvious in the light of the skilled person's common general knowledge: [2011] EWHC 1591.