Eli Lilly wins cancer patent case

The Maritime and Commercial High Court has granted Eli Lilly a preliminary injunction against a medicinal product marketed by the pharmaceutical company Fresenius Kabi. Plesner assisted Eli Lilly in the case.

The main issue in the case was whether Fresenius Kabi's medicinal product infringed one of Eli Lilly's patents relating to a specific combination therapy for the treatment of lung cancer.

Fresenius Kabi claimed that it did not infringe Eli Lilly's patent, as Fresenius Kabi had used a different salt than the specific salt identified in the patent claims. In this connection, Fresenius Kabi made a point of the fact that during the examination process leading to the grant of the patent by the EPO, Eli Lilly had limited its patent to the specific salt. Therefore Fresenius Kabi argued that Eli Lilly could not claim protection for any other salts.

In response to this, Eli Lilly claimed that Fresenius Kabi's medicinal product infringed Eli Lilly's patent, including by equivalence because, among other things, the choice of salt was irrelevant to the invention.

Preliminary injunction granted

In its decision of 8 December 2017, the Maritime and Commercial High Court granted a preliminary injunction against Fresenius Kabi's medicinal product.

Among other things, the court found it important that the amendment of the patent claim in connection with the examination process was due to a formal objection regarding added matter (under Article 123(2) of the EPC) that in itself could not lead to a finding of non-infringement of Eli Lilly's patent. The court also found that Fresenius Kabi's medicinal product solves the same problem as solved by Eli Lilly's patent, and that Fresenius Kabi's use of an alternative salt was an obvious choice for the skilled person. The court noted in this respect that in the application for authorisation for its medicinal product, Fresenius Kabi itself had emphasized that the medicinal product was therapeutically identical to Eli Lilly's medicinal product Alimta®, which the patent protects.

At this point, it is not clear whether Fresenius Kabi intends to appeal the decision.

You can read the decision of the Maritime and Commercial High Court (in Danish) here

Mikkel Vittrup and Peter-Ulrik Plesner, Attorneys-at-Law and Partners, assisted Eli Lilly in the case.

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