Patent Litigation Update

February 2018

It continues to be a busy time for patent litigation.  The following is a brief update of recent Commercial Court Preliminary Injunction Hearings:

January 2018 – Teva Pharmaceuticals v Mylan

A pharmaceutical interlocutory injunction application was before the Commercial Court in January 2018.  Teva sought a preliminary injunction against Mylan, claiming that Mylan’s manufacture of a glatiramer acetate product at its Galway plant had infringed a patent that covers a regimen for treating suffers of multiple sclerosis with a particular dosage of glatiramer acetate. Mylan denies infringement. Whitney Moore acted for Mylan in defending the application in a hotly contested three day hearing before the Commercial Court. Judgment is awaited.

November 2017 – Gilead Sciences v Teva Pharmaceuticals Ireland and Mylan

The Commercial Court refused an application for a preliminary injunction sought by US biopharmaceutical company Gilead Sciences (Gilead) against generic pharmaceutical manufacturers Teva Pharmaceuticals Ireland and Mylan (the defendants).  The proceedings concerned the defendants’ plan to market a generic version of Gilead’s HIV/AIDS antiretroviral drug Truvada® and the injunction sought to stop the defendants from launching same on the Irish market.

Following the Campus Oil principles, Mr Justice McGovern refused to grant the preliminary injunctive relief sought and held that, while there was serious question to be tried, damages were capable of assessment and would be an adequate remedy for Gilead.

In his judgment, McGovern J. noted his satisfaction that the defendants would be in a position to fulfil a future award of damages should the defendants ultimately lose at the trial of the action as both are pharmaceutical companies with substantial revenues. The Court also referenced the fact that the matter would be case-managed in the Commercial Court and therefore, the proceedings would be likely to proceed to trial in an expedited manner.

The Court did not deem it necessary to consider separate issues going to balance of convenience, such as the importance afforded to preserving status quo, the loss of “first mover advantage” by Teva and whether damages would be an adequate remedy for damage suffered by the defendants as a result of a preliminary injunction. The analysis of such issues fell away when it was held that damages were an adequate remedy for Gilead.

This decision confirms that the adequacy (or otherwise) of damages as a remedy to an applicant will continue to be a key factor in the decision on whether to grant a preliminary injunction.

For more information, please get in touch with your usual Whitney Moore contact , Aoife Murphy or any member of our IP team.

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