Neurim Pharmaceuticals (1991) Ltd and Flynn Pharma Ltd v Generics UK Ltd (t/a Mylan)

Court of Appeal of England & Wales - 18 June 2020

Gareth Morgan andAlasdhair McDonald, CMS

For the past 20 years or so, any generic company thatattempted to launch products “at risk” into the UK market did so in theexpectation that the patents court would grant the patentee interim relief inthe form of an injunction. This process restrained the alleged infringingactivity until a trial on the merits of the action could be heard. Further, andsince the Court of Appeal ruling in Novartis v Hospira, ¹ thatexpectation extended to a decided appeal – as the UK courts have been keen toencourage generic companies to “clear the way” of patent obstacles prior totheir product launches. Ever since the development of the “clearing the way”doctrine, ² generic companies have argued that placing thisobligation on them creates a disincentive to challenge patent rights that areconsidered “weak”.