Date: 22 January 2018
Secretary for State for Health v Servier Laboratories Ltd,  EWHC 2006 (Ch), 2 August 2017,
In the latest chapter of litigation involving Servier's branded perindopril drug, Coversyl, the High Court has struck out a claim for damages for loss caused by unlawful means.
An updated version of this case note, including discussion of proceedings in the Court of Appeal, can be found here: Court of Appeal confirms strike-out under “unlawful means” tort
It was alleged that misrepresentations made to the European Patent Office (EPO) in the course of an application for a patent (which was later revoked), as well as an interim injunction application to enforce the patent pending trial had caused loss to the claimant English Health Authorities. The misrepresentations were alleged to have been made with the intention of securing grant of the patent, delaying generic entry into the perindopril market and achieving elevated prices in respect of Servier's supply of perindopril to that market.
Mr Justice Roth, however, found case law dictated the tort required, among other things, that the alleged unlawful means had to affect the freedom of the third party to deal with the claimant. In this case, 'the "third party" are the EPO and the English court, and there is no question of interference with their "freedom to deal" with the English Health Authorities, or indeed with anyone else'. Accordingly, the ground of claim alleging loss caused by unlawful means had to be struck out as falling outside the scope of that tort.
Our full article is available here and was first published in the Journal of Intellectual Property Law & Practice on 12 January 2017.
For questions about this matter or related issues, please contact our Partner Reuben Jacob