English court claims jurisdiction in Unilever antibody dispute
The English High Court will hear a patent dispute between a subsidiary of biopharmaceutical company Sanofi and British-Dutch consumer goods brand Unilever.
On Friday, March 29, Judge Richard Hacon dismissed Unilever’s argument that the English courts have no jurisdiction over the lawsuit.
Back in 1993, Vrije Universiteit Brussel, a university in Brussels, applied for a European patent for an invention relating to immunoglobulins derived from camelid antibodies. The application matured into three granted patents.
Camelids are an animal family that includes camels, llamas and other even-toed ungulates.
In 1997, Unilever became a licensee of the three patents for the use of the inventions in a defined field called the 'reserved sector'.
The first defendant, VHsquared, which is funded by the Wellcome Trust, Unilever Ventures and private investors, became a non-exclusive licensee under the patents in relation to the reserved sector.
Then, in November 2001, the university granted a sub-licence under the patents to claimant and Sanofi-unit Ablynx for the exclusive right to exploit the inventions in relation to medical uses outside the reserved sector.
But, since 2012, Ablynx has alleged that VHsquared exploited uses of the inventions in breach of Ablynx's rights as exclusive licensee, prompting litigation in the Netherlands, the present English action and most recently, proceedings in Belgium.
According to Ablynx, VHsquared infringed the UK designations of the patents before they expired and these infringing acts provided a springboard for work done by VHsquared after the expiry.
Ablynx named five other defendants, all part of the Unilever Group.
Unilver and VHsquared applied for a declaration that the English courts have no jurisdiction and a stay of the action, pending the outcome of the Belgian litigation.
Unilever argued that the usual rule on exclusive jurisdiction under article 24(4) of Regulation 1215/2012 (Brussels I recast) doesn’t apply for two reasons.
First, that VHsqaured was licensed to carry out the allegedly infringing acts. This turns on Unilever’s licence contains an article granting exclusive jurisdiction to 'the Court of Brussels' to settle any disputes arising in connection with the licence.
Second, the defendants argued that the validity of the patents would form only an incidental part of the action, since it is a dispute about the scope of VHsquared's licence. According to Unilever and VHsquared this meant that the proceedings wouldn’t be ‘concerned with’ the validity of the patents within the meaning of article 24(4).
But Halcon concluded that article 24(4) was engaged because the action was ‘concerned with’ the validity of the patents.
He went on to say: “I am satisfied that the defendants have established a prima facie case that, had art.24(4) not been engaged, the Unilever licence would have conferred exclusive jurisdiction over the present proceedings on the courts of Brussels.”
Halcon dismissed the application, refusing a stay of proceedings.
VHsquared said that on Monday, April 1, the court granted leave to appeal, finding that the Albynx claim should not proceed in the UK until the question of jurisdiction is decided.
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories sent like this straight to your inbox.
