On 28 June, the UK Court of Appeal granted permission for GSK to pursue their claim for Arrow relief in the case of Glaxo Group Limited & Ors v Vectura Limited. I for one, thought that following the grant of Arrow relief in the case between Fujifilm v Abbvie last year, Arrow declarations may simply be a "one hit wonder". After all, when Fujifilm were awarded the very first Arrow declaration last year, 10 years had passed since this form of relief was first considered in the case between Arrow v Merck. It appears from this recent judgment that the sceptics might be wrong.

For those not familiar with Arrow relief, a party seeking an Arrow declaration is asking for a declaration that the specific product they are looking to manufacture, sell, use etc would have lacked novelty or been obvious at a particular date. The purpose of such a declaration is essentially to provide a party with a “Gillette” defence to any subsequent claim for infringement of a patent with that date as the priority date.

An Arrow declaration was sought in the case between AbbVie and Fujifilm to allow Fujifilm legal certainty upon launch of their generic form of AbbVie's Humira product. This case was of great importance since Humira is the largest selling prescription drug in the world. Fujifilm were awarded their Arrow declaration taking into account AbbVie's conduct in essentially shielding patents in the Humira portfolio from revocation actions before the courts. The trial judge noted that the facts were "most unusual" leading many to wonder whether or not this would be a unique case.

This recent judgment is particularly interesting because in response to Vectura's strike-out application, it was ruled that if "the pleaded facts and arguments give rise to a realistic claim for Arrow relief", it passes the "strike-out" threshold. It was also ruled: "The discretion to grant Arrow relief is that of the trial judge, not that of the judge hearing the strike out application".

In terms of the conduct objected to by GSK in these proceedings, one of the issues was that Vectura had filed multiple applications in which the claim language had been revised to express essentially one inventive concept in different ways. GSK are seeking an Arrow declaration to provide them with certainty in the face of this challenging patent application thicket.

It will be extremely interesting to see if GSK's claim is successful. For those of us helping our clients to secure robust patent portfolios as well as navigate around others, there are going to be key lessons to be learned from these Arrow judgments.

Glaxo Group Ltd & Ors v Vectura Ltd [2018] EWCA Civ 1496 (28 June 2018)