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Life Sciences

Celltrion Opposes Expedited Trial and Delayed Launch Date

April 20, 2016

Life Sciences

Celltrion Opposes Expedited Trial and Delayed Launch Date

April 20, 2016

Back to Fish's Litigation Blog

 

On Monday, Celltrion filed a response to the letter Janssen submitted to the Court on April 12 requesting an expedited trial schedule.  Celltrion maintains that Janssen improperly argues the merits of Janssen’s claim of infringement of the ’083 patent based on the doctrine of equivalents and requests an expedited case schedule based on inaccurate statements regarding defendants’ commitments regarding its launch date.

Celltrion first points out that Janssen should not have offered evidence, including expert evidence regarding its infringement theory through a letter.  Celltrion points out that Janssen is not asserting literal infringement, but rather infringement through the doctrine of equivalents based on an “unprecedented theory, where [Janssen] admits that the accused cell culture media avoids literal infringement twelve different ways” (emphasis in the original). Celltion asserts it is not aware of any court finding infringement under the doctrine of equivalents where there was more than one missing limitation, let alone twelve.  Celltrion continues that if Janssen’s theory were correct, the patent could cover an infinite variety of cell culture media, disregarding the requirement of definiteness and the public notice function of patents.

Next, Celltrion states they have not agreed to withhold the launch of their product until October 2, 2016. Rather, they have “repeatedly and expressly reserved their right to market as early as June 30, 2016.”  According to Celltrion, it will only delay launch if required by the anticipated decision in Amgen Inc. v. Apotex Inc., No. 16-1308 (Fed. Cir.).  As such, Celltrion argues, there is no reason to expedite the trial schedule.    In Celltrion’s opinion, expediting the trial schedule for just one patent (the ’083 patent) when the Court has not yet ruled on Janssen’s motion to stay the case on the ’471 patent, is highly prejudicial to Celltrion.

Celltrion’s clarifying statements regarding its launch date also mean that the dispute is still alive over whether its first Notice of Commercial Marketing, given before FDA approval of its biosimilar, was effective.  Celltrion’s position would be advanced if the Federal Circuit in Amgen. v. Apotex disagrees with the district court and holds that its previous decision (in Amgen v. Sandoz) requiring Notice of Commercial Marketing after FDA approval is limited to situations in which none of the BCPIA’s “patent dance” procedures are followed.  The parties also dispute whether Celltrion followed the “patent dance” procedures, bringing it outside the scope of the narrower interpretation of Amgen v. Sandoz.

Celltrion closes its letter stating it would be open to an earlier dispositive hearing on both patents, but opposes the proposal set out in Janssen’s opening letter to the Court.

We will continue to monitor this case and post relevant updates as they become available.

Blog Authors

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Jenny Shmuel, Ph.D. | Associate

Jenny Shmuel is an Associate in the Boston office of Fish & Richardson. She was a Summer Associate with the firm in 2011. Ms. Shmuel has worked on a range of intellectual property matters, including patent litigation in the software and medical device fields, copyright...

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Tasha M. Francis, Ph.D. | Associate

Tasha Francis, Ph.D. is an associate in Fish & Richardson’s Twin Cities office, practices intellectual property litigation with an emphasis on patent litigation. Dr. Francis has represented plaintiffs and defendants in cases involving medical devices, biotechnology...

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