Court Of Appeal Maintain Status Quo In Neurim V Mylan By Refusing Injunctive Relief

• Published date: 09 May 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: EIP
• Author: Myra Sae-Heng

In the latest flurry of judgments to arise from the Neurim v Mylan (now trading as Viatris) battle over Neurim's insomnia patent and Mylan's presence on the market with its generic version, we report here on the developments regarding the "Provisional Judgment," which we previously reported on here.¹On 29 March 2022, in its judgment led by Lord Justice Arnold, the Court of Appeal (i) granted Mylan permission to appeal against an order made by Mr Justice Marcus Smith on 7 March 2022; (ii) expedited the hearing of the appeal to be fixed in the weeks commencing 16 or 23 May 2022; and (iii) granted Mylan a stay of the injunction contained in Marcus Smith J's order pending the determination of the appeal.

Background

As we reported previously, Marcus Smith J provisionally determined on the papers the validity of the divisional patent EP 3 103 443 ("the Divisional") of EP 1 441 702 (the "Parent" - the initial patent in which Neurim had brought an earlier claim against Mylan for infringement (the "First Claim")). In his judgment dated 10 February 2022, the Judge found, on the papers, that the Divisional was valid and infringed. He also refused permission to appeal. The Judge went on to invite the parties to appear before him if they wished to persuade him to take a different course.

Mylan took up the Judge's invitation leading to an additional judgment from Marcus Smith J dated 8 March 2022² (the "March 2022 Judgment"). Mylan looked to rely on the "lay-patient argument" which had been successful before the Board of Appeal at EPO. However, those submissions were rejected and the Provisional Judgment was affirmed with permission to appeal rejected. The Judge also went on to grant Neurim an injunction and refused Mylan's application for a stay of the injunction pending the determination of an application to the Court of Appeal for permission to appeal.

Permission to Appeal

In the March 2022 Judgment, the Judge explained that the lay-patient argument failed due to the findings of fact he had made in his December 2020 judgment in the First Claim relating to the Parent. However, the Court of Appeal considered that Mylan's grounds of appeal concerning the lay-patient argument had a real, as opposed to fanciful, prospect of success, and thus granted Mylan permission.

Expedition of the Appeal

Mylan also sought expedition of the appeal. The Court of Appeal noted that given the Divisional was due to expire 12 August 2022, expedition was clearly appropriate and permitted...