[HC 07 C00988]
In its judgment of 2 July the Court of Appeal (Ward, Jacob and Lloyd LJJ) rejected Generics (UK) Ltd’s appeal from the judgment of Mr Justice Kitchin of 15 October 2008, in which he found that Daiichi’s SPC covering levofloxacin (the S(-) enantiomer of the racemic mixture ofloxacin, an antimicrobial) valid, not only as regards the validity of the underlying (expired) basic patent but also as regards the allowability of the SPC. The judgment at first instance is reported in our newsletter of December 2008. Approving Mr Justice Kitchin’s judgment, Lord Justice Jacob fully endorsed the judge’s rejection of the attack on inventive step commenting that “only a curmudgeon would say there was no invention there”. As regards the allowability of the SPC, Lord Justice Jacob affirmed the reasoning at first instance, namely that the authorisation to sell ofloxacin was not the first authorisation to sell levofloxacin – the two are not regarded as the same either for the purposes of patent law (novelty) or for the purposes of the law relating to the marketing of medicinal products.