On 27 November 2018 the Court of Appeal of The Hague in the Netherlands reversed the first instance court’s decision, confirming the validity of AstraZeneca’s patents on their breast cancer drug Faslodex® and reinstating the earlier injunction against Sandoz in PI proceedings. With this decision the Court of Appeal confirms the earlier decision from the same Court (but different appeal judges) in PI proceedings rendered one year ago, which decision had surprisingly been overturned by the Dutch court of first instance in main proceedings in April of this year. Our colleagues in Amsterdam were able to successfully reverse this decision on the merits some seven months later.
On the substance, the recent decision is important as it emphasizes the need for a clear incentive for the skilled person to apply the teaching of a prior art document to arrive at the claimed invention with a reasonable expectation of success. Try-and-see is not sufficient to show lack of inventive step, no matter how simple or straightforward the required further research of the skilled person is to show the suitability of the prior art disclosure to solve the objective technical problem.