Sandoz AG & Ors v Biogen MA Inc (Permission to Appeal)

MR. JUSTICE MELLOR:

1. I now have to consider Biogen's application for permission to appeal. It will be apparent from my judgment that this is a complicated case. I considered a number of constructions, which I set out in [279] of the judgment.

2. Dr. Turner now says that Construction 3 has always been Biogen's preferred construction and, in argument today, he accepted that, in that Construction, the 1.5 index value in the claim does not mean anything.

3. He accuses my judgment of being internally inconsistent as to the consequences of the significance of the index value of 1.5. I think his point was that, although I criticised and rejected Construction 3 at least for the reason that the index value of 1.5 was just an arbitrary number, the criticism applied equally to Construction 5, which was the construction I held to be the correct one.

4. Although Dr. Turner says there is an internal inconsistency in the judgment because of that, I do not believe there is. There were other reasons why I rejected Construction 3. Furthermore, the reason for adopting Construction 5 was because it was the best construction I thought that met the circumstances of the case. It did not mean that it was without its problems.

5. Overall, when I was considering Biogen's grounds of appeal as explained in their skeleton and as explained in oral argument today, what I was looking for was a route by which Biogen could achieve a finding of validity. I regret to say, having considered all the arguments carefully, I do not see that Biogen does have such a route and, therefore, on grounds 1 and 2, I do not think there is a realistic prospect of success.

6. If I had considered that there was a realistic prospect of success on the combination of grounds 1 and 2, I would have given permission to pursue grounds 3, 4 and 5. In the light of my conclusion, I must refuse permission to appeal. (For continuation of proceedings: please see separate transcript)