Where Is the Italian Supreme Administrative Court Going in the Never-Ending Pfizer Latanoprost Saga?

Daniela Ampollini, Jul 15, 2013

It is obvious to all that know even a little of patent law, that the validity (and, even before, the dignity) of a divisional patent is not based on the fact that it will purport the development or launch of a new product. Quite the contrary, a divisional patent by definition concerns an invention that is already contained in the parent patent. In fact, divisional patent EP ‘168 was eventually found valid in the last instance of EPO opposition proceedings. And, after appeal, the Regional Administrative Court concluded that the IAA decision had to be reversed as Pfizer had simply exercised its rights under patent law, both at an administrative stage (by requesting the divisional patent and later the SPC) and at a judicial stage (by requesting injunctions against generics based on the granted SPC). Further, they concluded that no quid pluris (such as the wilful provision of elusive or erroneous information to a patent office as inAstraZeneca) had been identified which could support a finding of the existence of an exclusionary behavior.

Against this background, last May the Supreme Administrative Court, which is hearing the further (and last) appeal filed by the IAA against the decision of the Regional Administrative Court, has issued an interlocutory order which, at first sight, may seem to bring the case back to the level of misunderstanding of patent law which already occurred before the IAA, and which one would think (and hope) to have been cured for good by the Regional Administrative Court.

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