• CIVIL

England and Wales Court of Appeal (Civil Division) Decisions

FH (Bangladesh) v Secretary of State for the Home Department

The appellant, a citizen of Bangladesh, arrived in the United Kingdom. He gave his name as Syed Mohammed Shweb. He was then 19 years of age. He requested leave to enter as a visitor. He was granted temporary admission but was served with a notice requiring him to submit to further examination. On 27 October 1986 he was refused leave to enter. He was served with a notice to that effect. It also included removal directions. As a condition of his temporary admission he was required to report to Heathrow Terminal 4 on 2 November 1986 for removal to Bangladesh. He failed to do so. Instead, he went to ground. He changed his name to Faruk Apu Hamid and later obtained a passport in that name. He remained undetected by the immigration authorities until March 2004. In the intervening years he successfully applied for National Insurance registration in his assumed name in which he also registered with the National Health Service. He opened a bank account using the same identity. For almost 18 years he was employed in various Indian restaurants. He paid taxes. He has never claimed social security benefits, nor has he been convicted of any criminal offence. He has parents and siblings in Bangladesh to whom he has customarily remitted a third of his earnings. On 2 May 2003 he made an application for indefinite leave to remain by reference to his long residence but it was rejected because it did not enclose the appropriate documents. On 16 March 2004 he made a second application. It was refused by the Secretary of State on 4 December 2006. The appellant appealed. At first his appeal was dismissed in a determination promulgated by the Asylum and Immigration Tribunal (AIT) on 28 February 2007 but it transpired that there had been a mix-up about the time and place of the hearing and a reconsideration was ordered. On 11 January 2008, the AIT dismissed the appeal. It is against that decision that he now appeals to this court.

Held that if the Secretary of State had given timely consideration to the appellant's application and, in so doing, had regard to the concession as well as to the rules, there might have been a different outcome, particularly so in the light of the approach illustrated by ZH. It is not inevitable that the proportionality exercise would have favoured immigration control. Appeal allowed.

• INTELLECTUAL PROPERTY RIGHTS

England and Wales High Court (Patents Court) Decisions

Leo Pharma (a/s Leo Laboratories Ltd) v Sandoz Ltd

The first claimant is the proprietor of European Patent (UK) No. 0 679 154 granted in respect of an invention entitled "New crystalline form of a Vitamin D analogue" ("the Patent"). The second claimant, is the exclusive licensee under the Patent. The Patent has a priority date of 15th January 1993. The Patent claims the monohydrate form of calcipotriol and pharmaceutical preparations containing that form. The defendant, Sandoz Limited ("Sandoz"), markets an ointment and cream containing calcipotriol. An interim injunction was resisted by Sandoz, inter alia on the ground that there was no arguable case of infringement. Sandoz maintained that its cream contained only de minimis amounts of monohydrate - not enough to give the benefits of the invention. Mann J granted the injunction. Although infringement has been in issue throughout, Sandoz now concedes infringement. Its only case now is that the Patent is invalid on the grounds of lack of novelty and obviousness. It counterclaims for revocation.

It is not established that the invention was obvious on this basis. I do not think it fair to hang as much on Leo's milling experiments as Sandoz wish to do. The form in which a crystallisation occurs, is inherently unpredictable. There is also the potential for a wide variation in processing conditions which could either favour or militate against the formation of the anhydrate. Taking these factors together, it seems to me to be impossible to conclude on the balance of probabilities that the skilled team pursuing Example 4 would encounter the monohydrate. If that is the conclusion for Example 4 of the acne use patent, it seems to me that the same conclusion applies to the 834 application and Calverley. No claim of the Leo patent is invalid. The action succeeds and the counterclaim will be dismissed.