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A Year in Patents - 2019

Issue 3

Editor's Note

Welcome to our annual review of patent law and practice developments.

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Cases concerning standard essential patents (SEPs) and FRAND (fair, reasonable and non-discriminatory) licensing, and the UK courts’ approach to these disputes, continue to dominate the headlines.

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Infringement and validity

The Supreme Court’s 2017 decision in Actavis v Eli Lilly introduced a doctrine of equivalents (DOE) into UK law. In the two years that have followed, the new approach to claim construction has been a matter of considerable debate (see in particular, the Court of Appeal’s decision in Icescape v Ice-World discussed in our 2018 Review).

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The Patents Court rejected an application for an interim injunction in Abbott v Edwards. Whilst the facts of the caseare perhaps unusual, the decision is a reminder that, wherea patent owner cannot establish that it will suffer irreparableand unquantifiable harm, it will not be possible to obtain an interim injunction.

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SPCs continue to be a focus of regulatory and judicial development, though the CJEU refused to consider a reference from the UK court in Eli Lilly v Genentech on the question of whether an SPC should be granted to a patent owner that relies upon a third party’s marketing authorisation.

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