Teva Pharmaceuticals Ireland must pay Bristol-Myers Squibb Holdings Ireland Unlimited Company a net 50% of BMS’s costs of an appeal over an Irish patent, under a Court of Appeal costs ruling delivered on 21 March 2025.
The court awarded BMS 75% of its appeal costs and Teva 25% of its own costs. After setting the awards off against each other, Teva must pay the net balance, with the costs to be adjudicated if the parties cannot agree.
The ruling followed the Court of Appeal’s November 2024 decision to overturn the High Court judgment and order insofar as they held the patent and supplementary protection certificate invalid. The court sent the patent validity challenge on plausibility grounds back to the High Court for a rehearing before a different judge. It did not decide the patent’s validity on appeal; that remains for the rehearing.
The court said BMS was partially successful. It had persuaded the appeal court that the High Court judge had failed to make essential factual findings and give reasons for essential conclusions, and had misapplied comity in relation to decisions by European courts concerning the patent. The appeal’s result restored the patent’s validity pending the rehearing, the ruling said.
But BMS was unsuccessful in arguing that the appeal could be decided by applying the test in the Enlarged Board of Appeal’s decision in G2/21, Sumitomo. The Court of Appeal had found that BMS could not advance that argument on appeal because it had not relied on that basis at trial. The costs ruling said a significant part of the four-day appeal addressed the point, and reduced BMS’s recovery to reflect that work.
Teva also received a share of its costs because it had resisted applying the G2/21 test to resolve the appeal. Although the appeal court directed that the High Court should apply that test at the rehearing, it did not use it to resolve plausibility on appeal. The court treated Teva as partially successful on that issue.
The ruling addressed appeal costs only. The High Court had not yet been asked to decide trial costs, so those costs were outside the appeal.