A defendant in preliminary injunction proceedings heard
before a Greek court, relating to the infringement of a
pharmaceutical patent, may raise an objection to the patent's
validity. This option is not free from difficulties as the
Greek court, which has jurisdiction to grant an injunction, is
not a specialised IP court which has jurisdiction to try the
same case in ordinary proceedings, but a court having general
jurisdiction on civil and commercial matters.
In the specific case, the patent in suit was one containing
an independent claim that covers a new and inventive active
ingredient (active ingredient A), which was not challenged by
the defendant. The same patent also contained a dependent
claim, which covered a combination of the active ingredient A
along with another off-patent active ingredient (active
ingredient B). The defendant's objection on inventive step was
only directed against the above-mentioned combination.
The Greek court dismissed the objection as a matter of law,
holding that it cannot in any way be inferred, as per the
defendant's allegation, that the combination of the two active
ingredients, does not meet the condition of inventive step,
given that active ingredient A was not known before the grant
of the patent in suit, since it was first discovered with the
invention protected by the patent, and, therefore any
combination of a previously unknown substance, such as active
ingredient A, with a known substance, such as active ingredient
B, was not obvious or evident.
This is in line with EPO case law, according to which, in
cases where an independent claim is acknowledged as new and
inventive, it follows that the claims dependent thereon are
also new and inventive (see EPO Guidelines, G VIII -13), as
argued by the claimant.
Good guidance helps, especially in IP cases where fast and
effective protection is a stepping stone for IP owners.
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