It is established case law that the content of the disclosure of a prior art document is constituted not only of the words actually used but also what the publication reveals to the skilled reader as a matter of technical reality. In a recent case (Ratiopharm v Eli Lilly) the court of the Hague ruled that when a prior art document contains prima facie an error, the document does not need to be ignored but may still be used if the correction of the error is directly and unambiguously evident.
In the case at hand, Eli Lilly owned a patent directed to olanzapine. Olanzapine is used in therapy for schizophrenia and has reduced side effects. In an earlier document (Shauzu) the title of the document did not match the structural formula that was given. According to the court in The Hague, the skilled person could see at once that the structural formula was not correct. The skilled person is interested in the technical reality and would therefore correct the error on the basis of the document. The argument from Eli Lilly that the skilled person would have had several options to correct the error and that therefore the compound olanzapine was not directly and unambiguously disclosed was of no avail.
According to the court of The Hague, olanzapine was directly and unambiguously disclosed in Shauzu and the Dutch part of the patent and its SPC was revoked. This decision is in contrast to decisions in the US, China, Czech Republic, Slovenia, Romania, Ukraine, Russia, Germany, UK, Austria and Spain. These courts did not find that olanzapine was directly and unambiguously disclosed in Shauzu. This ruling shows that it is not clear at first sight whether a prior art document containing and error can be corrected and if so how. According to the court in The Hague this depends on the technical reality. What this technical reality is remains a matter of debate.
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| Jenny Cromsigt |
Vereenigde Octrooibureaux NV
Johan de Wittlaan 7, 2517 JR The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99
patent@vereenigde.com
www.vereenigde.com