Tuesday, 4 May 2010

Augmenting the Augmentin patent?

In SmithKline Beecham plc and Another v Sandoz AG and Another (96/3472) [2010] ZACCP 3, SmithKline launched an application for the amendment of South African Patent No. 96/3472 ("the patent") relating to their famous antibiotic - AUGMENTIN. The application was opposed by Sandoz and Novartis SA (Pty) Ltd (the second respondent). The history appears to go something like this:

In 2006 it came to the notice of SmithKline that a product named Sandoz Co-Amoxyclav BD suspension was being sold on the South African market by Norvatis SA (Pty) Ltd and that an application had been made to revoke their patent. On the other hand, SmithKline believe that the product infringed/s at least some of the present claims of the patent.

The application to amend was hotly contested by Sandoz/Novartis, as summarised in the judgement, which concluded:

"After considering all the facts before me, the legal principles/ the authorities and the arguments of all the parties , I am satisfied that on the facts before me the applicants/patentees have made out a case for the amendment. In so far as costs are concerned I am of a considered view that in the circumstances herein it will be fair, and in the interests of justice that each party pay its own costs."
This dispute looks likely then to continue in its "amended" form. However, the judgment seems to illustrate how a delay in amending clerical errors is not advantageous to patent owners because of the resultant delay (and additional cost and scrutiny) when it comes to enforcement.

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