Arrow declaration

In UK patent litigation, an Arrow declaration is a declaration or order sought, for reasons of legal certainty, from a court that a product (or process) to be launched was old (i.e., not novel) or obvious in patent law terms at a particular date, so that the product (or process) cannot be affected by (i.e., cannot infringe) any later granted patent, which would itself necessarily also either lack novelty or inventive step.¹²³⁴ The order is named after Arrow Generics Ltd. v Merck & Co Inc [2007] EWHC 1900 (Pat), in which it was originally suggested that this mechanism would be available as a declaratory relief.¹³⁵ Such a declaration was granted for the first time in Fujifilm Kyowa Kirin Biologics Company Ltd v Abbvie Biotechnology Ltd [2017] EWHC 395 (Pat), Patents Court, England, 3 March 2017.⁵

The defense is similar to a so-called "Gillette defense", i.e. "the argument in infringement proceedings (...) that the defendant's product implements prior art technology, such that any patent which it infringes must be invalid."¹