South African Constitutional Court
Ascendis Animal Health (Pty) Limited v Merck Corporation and Others CCT 212/18
This case involves a challenge against the validity of a patent registered by Merck, one of the world’s largest pharmaceutical companies, relating to an injectable formulation used to treat parasitic infections. For a patent to be valid, its subject matter has to be inventive, non-obvious and useful. Merck filed a patent infringement action against Ascendis. Ascendis, in turn, challenged Merck’s patent on the basis that the formulation was not novel and was obvious. After losing at the Supreme Court of Appeal, Ascendis sought to defend Merck’s patent infringement action on a further basis, that the patent was not useful. Merck submitted that all challenges to the validity of its patent were res judicata (already decided), an argument that was upheld. Ascendis has turned to the Constitutional Court to rule that the rule of res judicata does not prevent it from bringing further applications challenging the validity of Merck’s patent on grounds that had not been considered in the prior litigation.
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