Sandoz AG & Ors v Biogen MA Inc (Permission to Appeal) [2024] EWHC 3347 (Pat)
[1]I now have to consider Biogen's application for permission to appeal. It will be apparent from my judgment that this is a complicated case. I considered a number of constructions, which I set out in [279] of the judgment.[2]Dr. Turner now says that Construction 3 has always been Biogen's preferred construction and, in argument today, he accepted that, in that Construction, the 1.5 index value in the claim does not mean anything.[3]He accuses my judgment of being internally inconsistent as to the consequences of the significance of the index value of 1.5. I think his point was that, although I criticised and rejected Construction 3 at least for the reason that the index value of 1.5 was just an arbitrary number, the criticism applied equally to Construction 5, which was the construction I held to be the correct one.[4]Although Dr. Turner says there is an internal inconsistency in the judgment because of that, I do not believe there is. There were other reasons why I rejected Construction 3. Furthermore, the reason for adopting Construction 5 was because it was the best construction I thought that met the circumstances of the case. It did not mean that it was without its problems.[5]Overall, when I was considering Biogen's grounds of appeal as explained in their skeleton and as explained in oral argument today, what I was looking for was a route by which Biogen could achieve a finding of validity. I regret to say, having considered all the arguments carefully, I do not see that Biogen does have such a route and, therefore, on grounds 1 and 2, I do not think there is a realistic prospect of success.[6]If I had considered that there was a realistic prospect of success on the combination of grounds 1 and 2, I would have given permission to pursue grounds 3, 4 and 5. In the light of my conclusion, I must refuse permission to appeal. (For continuation of proceedings: please see separate transcript)