Court Orders Disclosure of Key Document in Teva v Bayer Patent Dispute

Citation: [2023] EWHC 3276 (Pat)
Judgment on


The case of Teva Pharmaceutical Industries Limited & Anor v Bayer Intellectual Property GmbH is a patent litigation heard in the Patents Court of the Business and Property Courts of England and Wales. The judgment provides insight into various legal principles associated with disclosure of documents in intellectual property disputes. This article dissects the judgment delivered by Sir Anthony Mann and explores the key legal points, their applications, and implications.

Key Facts

Teva, among other generic drug manufacturers, challenged Bayer’s patent related to the drug rivaroxaban. A pivotal issue in the dispute was the obviousness of the patent stemming from prior art and whether Bayer would have disclosed the chemical structure of a compound known as BAY 59-7939. Teva requested the production of a presentation document believed to reveal the extent of the compound’s confidentiality and whether Bayer would have disclosed this information if asked.

Bayer resisted the application, arguing that the document was irrelevant and not probative of any issue in the case. Bayer incurred significant costs in this resistance, amounting to over £130,000 when combined with the claimants’ costs.

The judgment traverses several legal principles within the context of disclosure in patent proceedings, starting with the concept of a document being “mentioned” in a witness statement as per Practice Direction 57 para 21. It requires a ‘direct allusion or specific mention’ – an indirect reference or inference to the existence of a document is not sufficient. This case cites Expandable Ltd v Rubin [2008] EWCA Civ 59 and Dubai Bank Limited v Galadari (No.2) [1991] WLR 721 to outline the meaning of ‘mentioned’.

The judgment also hinges heavily on the principles of relevance and probative value of documents in civil litigation. The court evaluated the disclosure request through the lens of the Civil Procedure Rules (CPR) and Practice Direction 57 associated with extended disclosure, assessing factors such as the nature of the issues, importance of the case, and whether the document likely has probative value.

The court’s inherent jurisdiction under CPR 3.1(1)(m) was considered as an alternative means to compel disclosure, notwithstanding practices outlined in disclosure directions, ensuring that litigation is conducted within the principles of the overriding objective – fair, expeditious, and cost-effective resolution of cases.

Lastly, the case demonstrates a robust stance against non-cooperative litigation conduct. The judge criticized Bayer for not producing the document in the spirit of the “cards on the table” approach advocated by the modern civil procedure regime.


The court ordered Bayer to disclose the document, finding that it was relevant and likely to exist, overruling Bayer’s objections of relevance and probative value. The order was based on the recognition that despite the document being sought late in the process, non-disclosure would impede a fair trial, and its production would not hinder trial preparation. Costs were awarded on an indemnity basis against Bayer, with the caveat of a subsequent assessment to ensure no duplication in recoverable costs across multiple claimants.


The judgment of Teva v Bayer is a clarion call for adherence to cooperative principles in civil litigation, particularly in cases of document disclosure. It emphasizes that procedural technicalities should not obstruct the substantive justice of a case. The insistence on a document being “mentioned” was not an acceptable excuse for non-disclosure, especially when the document’s existence was highly likely, and its production uncomplicated. The court’s decision is noteworthy for legal professionals, affirming the judicial expectation that parties will conduct themselves sensibly in the interest of justice and the efficient use of resources, reinforcing the ‘cards on the table’ policy that underpins English civil litigation.

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