A major European pharmaceutical company was sued in the USA and Germany for infringement of a competitor patent, which had broad claims on the testing of compounds for their anti-cancer activity. The patentee had sued our client in the USA alleging that the importation of information obtained from the screening activity performed in Germany was an act of infringement because the information was directly obtained by a patented process. The client was sued in Germany for performing the method of screening. An opposition against the EP patent was pending at the European Patent Office, but the period for filing an opposition had long expired and the proceedings were at the appeal stage.
Two senior patent attorneys of our Biotech team as well as one of our attorneys-at-law teamed together with another European law firm to develop a defense in Germany and coordinate our position with another law firm in the USA. We filed an intervention pursuant to Art. 105 EPC to join the opposition/appeal. In addition, we coordinated and took charge of the defense for the co-opponent/appellant at the EPO. We also acted as the lead patent attorneys in the litigation in Germany.
Although the first instance infringement proceedings resulted in a decision adverse to the client because a prior publication of the client was deemed by the court to demonstrate infringement of the patent, we were able to revoke the patent as an intervener at the EPO. This rendered the result in the infringement proceedings moot and ensured a complete success for our client.