Prompt action to stop infringement of H. Lundbeck A/S' pharmaceutical Cipralex®

The majority of Lundbeck's turnover derives from the phar­maceutical blockbuster Cipralex®. The active ingredient in Cipralex® is escitalopram. Despite the escitalopram manu­facturing process being patented, Cipralex® has been under attack from generic manufacturers that receive escitalo­pram from the Indian company Dr. Reddy's.

Injunction against Danish pharmaceutical wholesalers

On 17 July 2009 a Danish enforcement court issued an injunction against the pharmaceutical wholesaler Nomeco and ordered it not to distribute Cipralex® ge­neric pharmaceuticals whose active ingredient had been manufactured by Dr. Reddy's.

Nomeco was then one of two pharmaceutical wholesal­ers on the Danish market. The other pharmaceutical wholesaler, Tjellesen Max Jenne, declared that it would observe the injunction. The distribution of generic Cipralex® had consequently been prevented.

However, in November 2009 the generic manufacturer Teva decided to let a newly established pharmaceutical wholesaler called Pharma Change distribute Teva's ge­neric Cipralex®. The distribution was prohibited by a Danish enforcement court on 15 April 2010. The distri­bution of generic Cipralex® had consequently been prevented once again.

Prompt action to stop a generic manufacturer's attempt to circumvent injunction already issued

Despite the Danish enforcement court ordering Pharma Change not to distribute Teva's generic pharmaceutical, Teva informed the pharmacies in Denmark in a letter of 7 June 2010 that as from 14 June 2010 Teva itself would commence distribution. Teva stated in its letter to the pharmacies that an injunction had only been issued against distribution by Pharma Change and that as a consequence it was legally possible for Teva to distribute its generic pharmaceutical.

Lundbeck learned of Teva's plans on 8 June 2010 and on 9 June 2010 Lundbeck sought an injunction by the en­forcement court, which immediately scheduled a date for the oral proceedings for 10 June 2010. Teva tried initially to evade the proceedings by stating that Teva had recently moved its registered office out of the juris­dictional district of the enforcement court in question. Even if Teva's Danish headquarters were and are situated next door to the enforcement court in question, Teva had moved its registered office to a c/o address of a law firm in Copenhagen. However, Teva abandoned the point of view and instead pleaded that the proceedings should be stayed and that Teva did not infringe Lund­beck's rights. The enforcement court dismissed Teva's pleas without any hesitation and granted an injunction against Teva's contemplated own distribution of generic Cipralex® in the afternoon on 10 June 2010. The en­forcement court pronounced that:

"It was evident from the letter of 7 June 2010 from Teva Denmark A/S to the pharmacies in Denmark that the reason Teva Denmark A/S was planning to commence direct distribution of Escitalopram "Teva" is solely to circumvent the injunction issued by the Enforcement Court in Elsinore, Denmark, on 15 April 2010. For that very reason the Enforcement Court is satisfied that H. Lundbeck A/S' right not to put up with the actions pro­hibited by the order issued by the Enforcement Court in Elsinore, Denmark, of 15 April 2010 has been infringed by the action sought prohibited in these proceedings, see section 642(i) of the Danish Administration of Justice Act."

Teva has appealed the order.

Peter-Ulrik Plesner, Attorney-at-Law, Mikkel Vittrup, Attorney-at-Law, Jakob Krag Nielsen, Attorney-at-Law, and Caroline Thufason, Assistant Attorney, repre­sented Lundbeck in the proceedings.

Any questions in relation to the judgment can be di­rected to Peter-Ulrik Plesner, Attorney-at-Law, pup@plesner.com or tel: + 45 33 12 11 33.