CJEU
refuses UK High Court’s request for preliminary ruling on SPC applications
based on third-party MAs, on account of referred question being “hypothetical”
(C-239/19 Eli Lilly v Genentech)
On 5 September 2019, the Ninth Chamber of the CJEU refused a
request for referral in relation to the interpretation of Article 3(b) of
Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6
May 2009 concerning the supplementary protection certificate for medicinal
products (‘SPC Regulation‘). In its order, the CJEU held that this request for
a preliminary ruling was manifestly inadmissible a under Article 52(3) of the
Rules of Procedure of the Court of Justice, as the question referred was
hypothetical for the purposes of the dispute in the main proceedings…
Article
3(a) just keeps on giving: AG Opinion in SPC referrals C-650/17 and C-114/18
The Advocate General (AG) has issued his opinion in SPC
Referrals C-650/17 (Royalty Pharma) and C‑114/18 (Sandoz). Both referrals seek
clarification over whether an SPC may be granted to a specific, individualized,
embodiment of the product claimed by the basic patent. The referrals particularly relate to the
correct interpretation of Article 3(a) of the SPC Regulation (Regulation (EC)
No. 469/2009). Article 3(a) states that an SPC shall be granted for a product
“protected by a basic patent in force”. C-650/17 asks how Article 3(a) should
be applied to functional claims, and C‑114/18 asks how Article 3(a) should
be applied to claims specifying a Markush formula. In his opinion, the AG is
clear that Article 3(a) should be interpreted for these types of claims
according to the test provided in the CJEU decision C-121/17 (Teva)….
CJEU preliminary ruling judgment in C-688/17 (Bayer) provides
interpretation on Art. 9 (7) of the Directive 48/2004/EC (Enforcement
Directive) based on a referral from the Hungarian court
On September 12, 2019 the Court of Justice laid down its
decision in C-688/17 (Bayer) in a preliminary ruling proceeding coming from the
Metropolitan Court, Budapest, about the interpretation of Art. 9 (7) of the
Enforcement Directive, particularly regarding the term “appropriate
compensation” that is due to defendants in the event a preliminary injunction
is subsequently lifted.
In the decision the CJEU ruled that the term “appropriate
compensation” is a sui generis notion of EU law and shall be interpreted in a
uniform manner throughout the EU. Also the court highlighted that the
subsequent revocation of the patent in suit does not as such render the earlier
granted preliminary injunction unfounded.…
Vectura wins additional $10m patent damages against GSK
A district court
has upped Vectura’s award of $89.7 million in damages by $10m, after a jury
trial earlier this year found that GlaxoSmithKline (GSK) has willfully
infringed one of its patents. In a press release on Friday, September 13,
Vectura announced that the US District Court for the District of Delaware had
granted its motion for a 3% royalty rate on all future US sales of the
infringing products until Vectura’s patent expires in 2021. It was also granted
royalties on previous sales of the products from January 1, 2019 to May 16,
2019.…
Allergan, Lupin Must Face Payer Class in Loestrin Antitrust
Suit
A group of pension and benefit
funds won class action status Sept. 17 in a lawsuit accusing Allergan PLC,
Lupin Ltd. and their affiliates of divvying up the birth control market, but a
District of Rhode Island judge rejected a parallel bid by consumers. The
multidistrict suit also targets several formerly independent companies owned by
Allergan. It concerns patent infringement settlements that Warner Chilcott Co.,
now an Allergan subsidiary, reached with other drugmakers looking to roll out
generic versions of its contraceptive pill Loestrin 24 FE…
Cabaret Biotech Files Lawsuit Against Gilead Over Yescarta
Drug
Closely held Cabaret Biotech said
it had filed a preemptive lawsuit against Gilead Sciences Inc. and its Kite
unit “to end a needless dispute about patent royalties” over the cancer treatment
Yescarta (axicabtagene ciloleucel). Gilead, which exclusively licenses a patent
from Cabaret for Yescarta in the field of oncology, has protested its royalty
payment obligations since October 2018, according to complaint filed Monday in
federal court in Wilmington, Delaware. Cabaret is seeking a judgment that the
patent isn’t invalid and that but for the license agreement, Yescarta infringes
the patent, complaint says…
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