Tune in LIVE for tomorrow's Eli Lilly v Actavis Supreme Court showdown

Like any Kat, the AmeriKat prefers to view court hearings
from the highest vantage point

Almost a year ago, the AmeriKat reported that the Supreme Court had just published its list of cases that it would be hearing on appeal.  Among the list was Eli Lilly and Actavis.  Tomorrow, the Supreme Court will finally hear the dispute concerning Lilly's pemetrexed disodium product.

For those of you eager to hear what's going on you can tune in live online to the Supreme Court hearing where you can see the mighty Tom Mitcheson QC (supported by  Andrew Waugh QC and leading Stuart Baran) for Eli Lilly take on eloquent Danny Alexander QC (leading Thomas Raphael QC) for Actavis. The hearing is due to finish on Thursday.

The question, as summarized on the Supreme Court's website, is as follows:

Whether a new pemetrexed based cancer treatment produced by Actavis UK Limited and others infringes Eli Lilly and Company’s patent and its foreign designations either indirectly under s. 60(2) of the Patents Act 1977 (matter for appeal) or directly under a proper interpretation of Article 69 of the Europe Patent Convention 2000 (matter for cross-appeal).

If you do not wish to read all the myriad of decisions, the AmeriKat has re-summarized the 5 year (and then some) war between the companies as follows:

Dispute about the jurisdiction of DNIs

• November 2012:  Mr Justice Arnold said he had jurisdiction to hear DNIs with respect of the foreign designations of the Lilly patent (see decision here and AdvoKat summary here)

• May 2013:  A Court of Appeal consisting of Lord Justices Kitchin, Lloyd and Longmore upheld Mr Justice Arnold  (see decision here)

Decision on whether Actavis's proposed product would infringe

• May 2014:  Mr Justice Arnold held that Actavis' proposed dealings would not amount to direct or indirect infringement (Justice Arnold in 2014  (see decision here and IPKat summary here)

• June 2015:  A Court of Appeal consisting of Lord Justices Kitchin, Floyd and Longmore upheld Arnold J's decision in respect of direct infringement, but reversed the indirect infringement finding on the basis that if the products were reconstituted/diluted the saline solution would contain sodium ions in a ratio of at least 2:1. This would fall within the claims and thus the supply of Actavis's products would amount to indirect infringement (see decision here and IPKat summary here) 

The dextrose remission point

• February 2016:  The case also saw a recent decision from Mr Justice Arnold on a point that was remitted from the Court of Appeal.  The issue was whether the supply of Actavis' products would constitute indirect infringement of Lilly's patent if marketed with instructions to reconstitute and/or dilute the products with 5% dextrose solution instead of saline.  Mr Justice Arnold held it was not foreseeable that Actavis's product would be diluted with saline.  The AmeriKat has not heard if the decision has been appealed to the Court of Appeal, but imagines it is likely (see decision here and AmeriKat summary here)

What's up for grabs in the Supreme Court?  

With both parties getting permission (see the table), the issue of direct and indirect infringement subject to the June 2015 Court of Appeal decision is up for grabs.  Stay tuned for how and what else the parties argue before the Supreme Court tomorrow.