Eli Lilly and Company (Appellant) v Actavis UK Limited and others (Respondents)

Eli Lilly and Company (Lilly) brought an action against Actavis and others (Actavis), seeking a declaration that Actavis's products would infringe the European Patent (UK) No 1 313 508 (the Patent) and its corresponding designations in France, Italy and Spain. The Patent claims the use of pemetrexed disodium in the manufacture of a medicament for use in combination with vitamin B12 for the treatment of cancer. Actavis's products involve pemetrexed compounds being used together with vitamin B12 for cancer treatment, but the active ingredient in the products is pemetrexed diacid, pemetrexed ditromethamine, or pemetrexed dipotassium, not pemetrexed disodium. The High Court rejected Lilly's claim that there would be direct infringement of the Patent, but the Court of Appeal allowed Lilly's appeal to the limited extent of holding that there would be indirect infringement in the four jurisdictions, but they agreed with the trial judge that there would be no direct infringement. Lilly appealed against the rejection of its case that there would be direct infringement, and Actavis cross-appealed against the rejection of their case that there would be no indirect infringement. The Supreme Court held, allowing Lilly's appeal and dismissing Actavis's cross-appeal, that the Actavis products directly infringe the Patent in the UK, France, Italy and Spain, and that if the Actavis products did not directly infringe, they would indirectly infringe to the extent held by the Court of Appeal. The Court found that the Actavis products achieve substantially the same result in substantially the same way as the invention, and that it would be obvious to the person skilled in the art, reading the patent at the priority date, but knowing that the Actavis products achieve substantially the same result as the invention, that it does so in substantially the same way as the invention. The Court further found that such a reader of the patent would not have concluded that Lilly intended that strict compliance with the literal meaning of the relevant claim(s) of the patent was an essential requirement of the invention. The Court also held that the Actavis products would indirectly infringe the Patent in the UK, France, Italy and Spain, because they would be dissolved in a saline solution in order to enable them to be administered to patients, and when one of the products is dissolved in saline, the solution contains pemetrexed disodium.