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Actavis and Ors v ICOS & Eli Lilly [2017] EWHC 2880 (Pat)

Case Summary  |  Judgment  |  15 February 2018

 

Adrian Speck QC and Tom Jones appeared for Actavis, Teva and Mylan in this application by Lilly and Icos (“Lilly”) for an interim injunction to prevent the launch of generic 2.5 and 5mg tadalafil pending a petition by Lilly to the Supreme Court for permission to appeal.

At first instance, Lilly’s patent for a dosing regime concerning the drug tadalafil had been held to be valid [2016] EWHC 1955 (Pat). However, the Court of Appeal overturned that decision finding the patent obvious [2017] EWCA Civ 1671.

Lilly’s application to the Court of Appeal for permission to appeal to the Supreme Court having been declined, Lilly applied to the High Court for an injunction to prevent the generics’ launch of tadalafil pending its petition to the Supreme Court for permission.

On the application the Judge applied the American Cyanamid test. He found that there was no realistic prospect of an appeal against the Court of Appeal’s finding of obviousness succeeding, and that even if he was wrong on that, each of the remaining factors to be considered were in favour of not granting an injunction. Accordingly, the Judge refused to grant the injunction.