Now You See It, Now You Don’t—Infringement By An Intermediate

Originally published in Blakes Bulletin in Intellectual Property - Special Patent Issue, September 2006.

The recent case of Abbott Laboratories v. Minister of Health and Ratiopharm addressed two notable issues, namely: (i) whether a patent is infringed by the production of a patented compound during an intermediate stage of the manufacture of a drug where the patented compound is not present in the finished drug; and (ii) whether a patent is invalid for anticipation in circumstances where the patented substance was previously made in the course of manufacturing another compound and the patented substance was not known or stabilized prior to the patentee’s invention.