“Unlike private international organisations, public international organisations are not subject to any national law. Thus, they must create their own internal law. The resulting law is an exclusive part of a separate legal order, which is dependent on the organisation's own constitution, but independent of any other legal order.”
“I am asked to declare that the state of circumstances exists which will give rise to the right of revocation. I cannot grant the appropriate relief, because the appropriate relief can only be obtained if the course of procedure pointed out by the Statute is followed. That is not so in the present case, for this is an action, not a Petition for revocation. Therefore I am asked to make a declaration, upon which, if I made it, I could give no sort of relief at all. I do not think it is the practice of the Court to make any such declaration, or to entertain any action for the purpose of such a declaration. The Court it is true has a discretion to make declarations – it is purely a discretionary power – without giving consequential relief, but I do not think it is the practice of the Court, nor do I think it is desirable, to entertain actions for declarations where the Court, if it were to make a declaration, could not give any relief at all as consequence upon the declaration itself.”
“Any company seeking to market a biosimilar version of Humira will have to contend with this extensive patent estate which AbbVie intends to enforce vigorously. … In the event a biosimilar attempts to launch at-risk, AbbVie will seek injunctive relief.”
“In my judgment these points are sufficient to show that FKB has a real prospect of establishing that AbbVie Bermuda's purpose in filing the amendments to EPA491, requesting a further rule 71(3) communication and reserving the right to pursue the deleted subject matter by way of one or more further divisional applications was to shield some or all of the subject matter of EPA491 from timely scrutiny by this Court, or at least to prolong the uncertainty as to whether such subject matter founds a valid patent.”
"I am, therefore, of opinion that in this case the Defendants' right to succeed can be established without an examination of the terms of the Specification of the Plaintiffs' Letters Patent. I am aware that such a mode of deciding a Patent case is unusual, but from the point of view of the public it is important that this method of viewing their rights should not be overlooked. In practical life it is often the only safeguard to the manufacturer. It is impossible for an ordinary member of the public to keep watch on all the numerous Patents which are taken out and to ascertain the validity and scope of their claims. But he is entitled to feel secure if he knows that that which he is doing differs from that which has been done of old only in non-patentable variations, such as the substitution of mechanical equivalents or changes of material shape or size. The defence that 'the alleged infringement was not novel at the date of the plaintiff's Letters Patent' is a good defence in law, and it would sometimes obviate the great length and expense of Patent cases if the defendant could and would put forth his case in this form, and thus spare himself the trouble of demonstrating on which horn of the well-known dilemma the plaintiff had impaled himself, invalidity or non-infringement."
“[the prior user], of course, and indeed any of the persons who witnessed or copied his aquatic feats, are members of the public and one then asks on what principle should such persons, who clearly cannot be prevented from doing exactly that which they did before, be prevented from doing that which is no more than an obvious variant of what they did before?”
“… It would not be fair to the parties to content oneself with so deciding the case, because the action has been fought on the ordinary lines, i.e., upon the issues of validity and infringement, and it is important, both for the parties and for the public, that these two issues should be severally adjudicated upon, inasmuch as they have been raised and considered by the Courts below …”
“Where questions of infringement and validity both arise it is invariably not possible to conclude there is infringement without validity being determined. An extreme example, known as a Gillette defence, is where the alleged infringer’s case is that the patent is invalid if the alleged infringing acts fall within the ambit of the claims. That appears to be part of the appellants’ contentions in this case. It follows that the split contemplated in the Jenard Report between actions for infringement and proceedings concerned with validity cannot always be made. … As Article 64 of the European Patent Convention requires the national law to be determinative of what will and what will not amount to infringement, it follows that when there is a bona fide challenge to the validity of a United Kingdom patent, any proceedings for infringement must in English eyes be “concerned with” the validity of the patent. Often, perhaps normally, the issue of validity will be the principal element of the dispute. No conclusion as to the chances of a claim of infringement succeeding can be made until a decision has been reached as to the strength of the allegations of invalidity. No concluded view on infringement can be reached until a decision has been reached as to whether any amendment should be made and the attack on the patent has been rejected. In the present case the appellants have raised a substantial attack on the validity of the United Kingdom patent and also intend to rely upon a Gillette defence. This is a case therefore in which no conclusion on the infringement can be reached without consideration of the validity of the patent. We believe that for the purposes of article 19 the claim by the respondents in respect of acts carried out in the United Kingdom are principally concerned with validity of the United Kingdom patent and therefore by reason of that Article and Article 16 the claim falls within the exclusive jurisdiction of the United Kingdom court.”
“The court may make binding declarations whether or not any other remedy is claimed.”
“It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose whether there are any other special reasons why or why not the court should grant the declaration.”
“17. … In Unilever [section 71] could have been, but was not invoked. So there was no reason for permitting the general jurisdiction to apply. This case is quite different for the following reason. 18. What Nokia would have to do to invoke s.71 would be to provide a written description of a telephone in detail. Then if there was no answer or refusal, sue for the declaration. The declarations could only be sought telephone by telephone. What is sought here is something very different – declarations that none of the patents are essential to comply with the standard. s.71 would not be appropriate for this so the existence of s.71 is no reason, as it was in Unilever, for excluding the general jurisdiction.”
“Where a statute creates a new right which has no existence apart from the statute creating it, and the statute creating the right at the same time prescribes a particular method of enforcing it, then, in the words of Lord Watson in Barraclough v Brown[1897] AC 615 , 623 the right and the remedy are given uno flatu, and the one cannot be dissociated from the other”
“it was obvious to the skilled person to use [alendronate] in the manufacture of a medicament in the form of a tablet containing about 70 mg [alendronate] for oral administration for the treatment of osteoporosis … according to a continuous schedule having a once-weekly dosing interval.”
“[Merck] says this court should not be making declarations in respect of the validity of patent applications because they are subject to examination by the EPO and their claims can change. For the court to start anticipating the examination process would be to usurp the function of the EPO and this is inconsistent with the framework of the EPC and the Act. I agree with all of these submissions. I find it hard to conceive of any circumstances in which it would be appropriate for this court to grant a declaration that no valid patent could be granted on a divisional application which is being prosecuted before the EPO. But that is not what is sought. Arrow only seeks declarations that its own product was obvious at the priority date. The existence of the divisional applications gives rise to the need and justification for seeking declaratory relief. Merck could withdraw the “GB” designations of the divisional applications or acknowledge that it can have no claim under them in this country in respect of a product having the specified characteristics of Arrow’s product. If it did so then the commercial purpose of the declaration sought would likely fall away. But it has chosen not to take that course.”
“It is submitted that although Lord Moulton’s test may be helpful in assisting a manufacturer to decide whether or not to proceed with some [act] which may appear to fall within the claim of a patent, it does not provide any additional defence to an infringement action. It is in reality an attack on validity which invokes the policy underlying the grounds of anticipation and obviousness.” vi) To allow declarations in the Arrow form would be to open the floodgates, so that a claimant faced with patent problems in, say, Romania could come to the English court for a declaration that a product is obvious, because it would be useful for him in connection with his business there. If the Arrow declaration does not raise issues of validity, then it would be a way of undermining the system of allocation of jurisdiction under the recast Brussels Regulation in ways which the courts have striven to prevent: see e.g. Gesellschaft für Antriebstechnik MBH & Co KG v Lamellen und Kupplungsbau Beteilungs KGCase C-4/03 [2006] FSR 45 (“GAT v LUK”) and Anan Kasei Co. Ltd and another v Molycorp Chemicals & Oxides (Europe) Ltd[2016] EWHC 1722 (Pat) (Arnold J). vii) In GAT v LUK it was also held that “proceedings relating to an alleged right of priority by reason of an earlier deposit should be regarded as proceedings “concerned with the registration or validity of patents”
“Further, the Claimant is entitled to an injunction to restrain the Defendants from threatening, commencing or pursuing in the United Kingdom any action for infringement of a patent against the Claimant (or its customers and agents) in respect of any act to which the declaration in paragraph 29 above pertains. By way of particulars of the Claimant’s cause of action for the injunction, the Defendant’s present and threatened future conduct has been and will be objectively (and it can be inferred subjectively) vexatious and oppressive. (1) If the declaration is granted it would be vexatious and oppressive for the Defendants to threaten, commence or pursue in the United Kingdom proceedings for infringement of a patent against the Claimant (or its customers or agents) in respect of any act to which the said declaration pertains. It is to be inferred that the Defendants would commence such proceedings (and they have not undertaken that they would not). (2) Further, independent of the declaration, the Defendants’ conduct as set out above is vexatious and oppressive and an abuse of process insofar as it illegitimately manipulates a persisting threat of patent infringement proceedings and shields from potential examination any patent which the Defendants may be able to obtain in the patent family of the ‘491 Patent. Such vexation and oppression presently exists because of the threat of patent infringement proceedings and would be realised eventual patent infringement proceedings or further threats thereof in respect of the Claimant’s products.”