Secretary of State for Health & Anr v Servier Laboratories Ltd & Ors, Ch Div (Roth J), 2/8/17

In proceedings by the Health Secretary and the NHS against the proprietor of a European patent for the drug perindopril, which had been declared invalid and revoked, one of the grounds of claim, alleging the tort of unlawful means, was struck out. The claim was based on the allegation that the patentee had obtained the grant of the patent, and successfully defended it in opposition proceedings, by misleading or dishonest misrepresentations made to the EPO. That deceit was alleged to give rise to a claim for interference with the claimants’ economic interests by unlawful means, in that the conduct had led to elevated prices for perindopril. However, the tort was confined within narrow limits including that the unlawful means had to affect the third party’s freedom to deal with the claimant. The scope of the tort argued for by the claimants would result in rights of action accruing to a very wide range of potential claimants including generic manufacturers, private health insurers, as well as foreign health authorities and insurers in designated states. The proper legislative balance had been struck by the statutory regime governing the rights and remedies concerning patents.