Setterwalls Secures Victory for Pharmaceutical Company in Patent and Market Court of Appeal

Setterwalls represented a pharmaceutical company in appellate patent litigation before the Swedish Patent and Market Court of Appeal. The firm secured a second consecutive victory in a high‑stakes pharmaceutical patent dispute when the Patent and Market Court of Appeal affirmed the Patent and Market Court’s judgment that the asserted patent was invalid and that the related infringement claims must be dismissed. The appellate court endorsed the lower court’s conclusions that the principal product claim lacked inventive step and that the auxiliary requests were deficient for lack of inventiveness and for added matter. Background: At first instance, the dispute concerned a patent claiming a specific salt — the tosylate salt — of a known oncology compound. While the patent remained in force, the patent proprietor brought infringement proceedings and sought preliminary and final injunctions. In its judgment of 25 January 2024, the Patent and Market Court found the main claim obvious: a person skilled in the art would have carried out routine pre‑formulation work, including a salt screen that would have identified the tosylate salt, so the claimed subject matter lacked an inventive step. The first auxiliary request, which added the limitation "for oral administration," was held not to alter the product‑by‑itself nature of the claim and therefore did not confer inventiveness. The second auxiliary request was found to lack support in the application as filed: the original disclosure was directed to combination treatment, and a mono‑treatment claim limited to oral administration constituted an impermissible intermediate generalisation. On appeal, the Patent and Market Court of Appeal (decision of 30 October 2025, case PMT 2466-24) affirmed the lower court. The appellate court agreed that, given the compound’s poor aqueous solubility at the priority date, a skilled team would reasonably have performed routine salt screening with strong acids and expected to obtain a suitable, stable salt; accordingly, the product claim lacked inventive step. The court also confirmed that adding an "for oral administration" limitation did not change the product‑by‑itself nature of the claim and did not render it inventive, and that a second‑medical‑use formulation limited to oral administration was rejected for added matter. As a result, the infringement claims were dismissed and the judgment is final. Setterwalls represented the pharmaceutical company with a team composed by: Per Lidman, Fredrik Ahlsten and Karolina Jivebäck Pap. Practice area: Intellectual property, marketing and media law.

Setterwalls Secures Victory for Pharmaceutical Company in Patent and Market Court of Appeal

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