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Judge not rash in psoriasis ruling

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

On Wednesday the Court of Appeal for England and Wales (Lords Justices Mummery, Jacob and Wilson) heard the appeal in Leo Pharma and another v Sandoz Ltd, a decision of Mr Justice Mann this March (see earlier IPKat post, "Dangerous to use common sense" Says Patent Judge, here). The Court of Appeal is not yet available on BAILII, though it has been briefly noted on the LexisNexis Butterworth subscription-only service.

Right: the IPKat is working on a new process for making calcipotriol monohydrate ...

Leo, the first claimant, held a patent for calcipotriol monohydrate, a new crystalline form of calcipotriol used to treat psoriaris, the second claimant being Leo's subsidiary. Sandoz, a big player in the generic pharmaceutical market, secured market authorisation for a cream containing the monohydrate version of the calcipotriol molecule, whereupon Leo roared "patent infringement!" and applied for an interim injunction to stop the distribution of the cream.

The question arose as to whether damages would be an adequate compensation for Leo if Sandoz were allowed to sell the cream up till the time of the trial, and as to the adequacy of a cross-undertaking in damages for Sandoz if that company were banned from selling a cream which, if it later turned out, they were allowed to trade in. On top of this, Leo's own financial difficulties were relevant, particularly in the light of its potential loss of sales and the need to reduce its own prices in order to combat the presence of a competitor in what would otherwise have been its monopoly market. Sandoz, on the other hand, wanted to protect itself against the loss of the benefit of being the first generic supplier to market the cream. Finally, the effect of the balance of convenience and the status quo fell to be determined.

Mann J allowed Leo's application. On the evidence, Leo would not adequately be compensated by damages and the balance of convenience meant that the injunction should be granted. Sandoz appealed, complaining that Mann J had erred in principle by taking into account the likelihood of Leo having to cut its prices before trial.

The Court of Appeal dismissed the appeal. In its view it was important to bear in mind precisely what it was that the judge had to consider. He did not have to decide on a balance of probabilities whether there would be price cuts if the injunction were not granted. His job was to undertake an entirely different exercise -- to consider the various possibilities that might happen before the trial, disregarding those possibilities which were fanciful. If there was any chance of a circumstance occurring, the judge was entitled to consider whether that circumstance affected the question of whether damages were an adequate remedy. That's what Mann J and his judgment could not be faulted.

The IPKat, who regarded the original decision as impeccable, naturally agrees with the Court of Appeal too.

Psoriasis here, here and here

Full post as published by IPKat on June 28, 2008 (boomark / email).