Biogen v Medeva – almost 20 years later, the parties sit down to talk it over

It may be hard to imagine Napoleon and Wellington sitting down to reminisce after the Battle of Waterloo - but it’s even more difficult to imagine opposing legal parties doing so after a long and hard-fought legal battle.  But that is what happened earlier this month when the parties involved in the ground-breaking patent case Biogen v Medeva met to reminisce about their involvement in the case before an invited audience.  It turned out to be an inspired and inspiring event - described by some guests as the best they’d ever been to.

The Biogen v Medeva litigation began in 1992 when Biogen began patent infringement proceedings against Medeva for the alleged infringement of a patent for a Hepatits B virus vaccine using recombinant DNA technology.  At the time, DNA technology was in its infancy and Biogen was a leader in the field.  The company had been founded in 1978 in Switzerland by a group of the world’s most accomplished biologists, one of whom proceeded to develop the technology in the field of Hepatitis B.  The now famous litigation that followed was complex, largely due to the science involved, hard fought, and lengthy - the Court of Appeal hearing took 18 days, the House of Lords, 14.  Lord Hoffman’s well-known judgment, which introduced the concept of what is now known as ‘Biogen insufficiency’ was handed down in October 1996. 

The event was the brainchild of Diana Sternfeld, who had been the solicitor acting for Medeva,  Peter Cozens, working at the time for  Medeva and responsible for acquiring the allegedly infringing technology, and Bill Tyrrell, who had been working for Biogen’s licensee, SmithKlineBeecham.   For several years, the case had taken over the lives of all those involved and it was still the subject of lively discussion.  Between them they agreed it would be interesting to get the whole team together.

It went from there, with everyone who had been involved in the case, enthusiastic to take part.  And so the final panel was made up as follows: the parties’ legal teams (Biogen – Simon Thorley QC, Andrew Waugh QC, Jim Haley and Leslie McDonell; Medeva Peter Prescott QC, Adrian Speck QC and John Ilett), their commercial representatives (Biogen – Bill Tyrrell;  Medeva Peter Cozens), Professor Jeffery Almond, Medeva’s expert witness, with Diana Sternfeld  in the chair. 

The event, which took place in the vibrant newly renovated premises of the Crisis Skylight Café in Commercial Street, on the edge  of the City of London, was judged by all present to have been a resounding success.  As well as the formal contributions from the panel, there were comments from The Rt Hon Professor Sir Robin Jacob and Martin Howe QC. 

There was a lot to be learned from the discussion, but there were also lots of entertaining stories and asides. 

Despite having been told from the outset that its case was strong, Medeva lost at first instance.   The hearing took place before judgment transcripts were made available in advance, and Diana described her feelings on hearing the opening words of Aldous J’s judgment:  “The patent is valid and infringed …” , and how, on leaving the court to have a few seconds to think before speaking to the client, she bumped into Hugh Laddie, Biogen's senior counsel,  “Now”, he said, “that’s a turn-up for the books”! 

Andrew Waugh, then a junior barrister for Biogen, recounted arriving  at court one morning to find Hugh Laddie and Jim Haley, Biogen’s US lawyer,  in a small room outside the court shouting at each other over the cross-examination notes. He also described his anxiety at having to explain the ‘smudgeograms’ (the name given by Peter Prescott to auto radiographs showing experimental results) to the House of Lords without the benefit of overhead projectors or a whiteboard. 

Adrian Speck reflected that Biogen v Medeva, his very first case, has been the high point of his career.

Peter Cozens talked about the Medeva chairman sending a copy of the press release to his opposite number at SmithKline Beecham announcing acquisition of the ‘offending’ hepatitis B technology.  Medeva had had patent advice and was ready for a fight – it certainly got one.

The evening concluded with wine, canapés and further animated discussion: “the best evening I’ve had for ages” said one of the departing guests.  And that seemed to sum it up perfectly.