Further invalidity orders
14 In my principal reasons for judgment at [522] I said:
For the reasons given I consider that all of the claims of the 051 or low dose patent are invalid and that the patent should be revoked. The claims on which AZ relies to assert infringement of the 165 or HeFH patent (claims 1 to 10 and 21) and the 842 or cation patent (claims 1 to 5, 7 to 9 and 10 to 18) are also invalid and liable to be revoked, although there is a question whether any of the claims of these patents can be sustained given the conclusions I have reached as set out above.
15 The reason that [522] was expressed in this way is that AstraZeneca relied on only certain claims of the 165 or HeFH patent and 842 or cation patent to assert infringement by the generic parties. Further, although Watson Pharma and Ascent asserted that all of the claims of all three patents were invalid, Apotex's claims were more confined. For these reasons, the principal judgment focused upon the claims on which AstraZeneca relied to assert infringement against the generic parties.
16 Paragraph [522] of the principal reasons for judgment reflects the fact that Watson Pharma and Ascent had asserted that all of the claims of each of the patents were invalid on the identified grounds, and that their evidence traversed the issues of invalidity relating to these grounds. It is for this reason that, in respect of the 165 or HeFH and the 842 or cation patent, I expressly noted that there remained a question whether any of the claims of these patents could be valid, given the conclusions I had reached. The issue of the validity of the remaining claims challenged by Watson Pharma and Ascent was reserved for hearing today. Watson Pharma and Ascent contend that none of the remaining claims of the two patents can be valid in the face of the conclusions in the principal reasons for judgment.
17 For AstraZeneca, the position is simply that there was not a particular focus on these claims in the proceedings and for that reason there is no cause for any declarations as to invalidity of those other claims to be made. In response to that, Watson Pharma and Ascent refer to the fact that they always alleged invalidity of all of the claims of the patents, that their evidence did traverse all of those claims and perhaps more importantly, in circumstances where there have been findings and conclusions which manifestly show that the remaining claims are also invalid as Watson Pharma and Ascent contended, the invalid claims should not remain on the register, in effect, inappropriately claiming monopolies in circumstances where the principal reasons for judgment on their face indicate that those claims are invalid.
18 In respect of the 842 or cation patent, it seems to me that the position is really beyond argument. AstraZeneca happens not to have contended infringement based on claims 6 and 19 through to 25, but, as I have said, the generic parties did assert invalidity of all of those claims, and their evidence traversed the invalidity of those claims. The conclusions which I reached about the cation patent, in particular the deferred priority date until 31 January 2005 as set out at [428] of the principal reasons for judgment, and lack of novelty based on, amongst other things, the international publication number W001/54669, as referred to at [439] and [440] of principal reasons for judgment, mean that it must be the case that claim 6 is also invalid. Further, claims 19, 20, 21 and 22, each claimed the use of an inorganic salt to stabilise rosuvastatin and also claimed the same novelty-conferring features as claims 1, 3, 4 and 6. As set out at [459] of the principal reasons for judgment judgment, the issue of addressing the stability of rosuvastatin would be addressed by the uninventive worker in the field as a matter of course in precisely the same way as the claimed invention in those claims. It follows that claims 19 through to 22 also simply cannot stand in the face of the conclusions in the principal reasons for judgment. Claims 23, 24, and 25, as submitted by the generic parties, concern a method of producing the stabilised pharmaceutical composition, including rosuvastatin, the composition having the same novelty features as claims 1, 3 and 6. And it must follow, just as with claims 19 through to 22, that these claims are also invalid.
19 In circumstances where the generic parties always contended that each of the claims of the 842 or cation patent were invalid and had evidence to support those claims, and in circumstances where the conclusions of the principal reasons for judgment inevitably and inexorably lead to invalidity of the remaining claims of the 842 or cation patent, I am satisfied that orders should be made as the generic parties seek in relation to that patent.
20 I turn now to the 165 or HeFH patent. The submission in relation to this patent is somewhat different. It is that the remaining claims, 11 through to 20 and 22 and 23, are limited to the same features as the claims which I expressly found to be either disclosed in the prior art, obvious, or subject matter not constituting a manner of manufacture. According to the generic parties, these remaining claims are "Swiss-style" claims because they seek to encompass the same subject matter as the method of treatment claims in 1 to 10. They were the subject of evidence by Dr O'Brien in which he noted the existence of the same features as he had already discussed in relation to claims 1 to 10, and there was no submission or contention by AstraZeneca that those claims were distinguishable or different in scope when compared to claims 1 to 10. According to the generic parties, it necessarily follows from the principal reasons for judgment that claims 11 to 20, 22 and 23 are invalid, again, in circumstances where they always contended invalidity, had evidence to support it, and where they call in aid also the public interest for invalid claims not remaining on the register. They seek the further orders as set out in the original process.
21 Again, my conclusions in the principal reasons for judgment relation to the HeFH or 165 patent are irreconcilable with the validity of these remaining claims. It is plain from those conclusions that these claims cannot be sustained in the face of my conclusions. In circumstances where the generic parties always contended for invalidity of these claims, had evidence to support it and invalidity is again the inexorable and inevitable result of the reasoning in the principle judgment, I can see no reason not to make the orders that are sought in respect of the 165 or HeFH patent.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.