US court rejects motion to dismiss Bayer haemophilia suit

A Californian court has rejected a motion to dismiss a lawsuit involving a treatment for haemophilia A, a genetic blood coagulation disorder.

The US District Court for the Northern District of California, San Jose Division, denied the motion but transferred the case, which was filed by German company Bayer Healthcare, to Delaware on Monday, March 12.

Defendants Nektar Therapeutics and Baxalta had requested the case be dismissed for lack of jurisdiction or transferred to Delaware.

According to the suit, Bayer has been researching and developing the role of factor VIII—a complex protein that is critical for proper blood coagulation and control of bleeding—and treatments for haemophilia A.

The dispute spans three cases in two districts.

In December 2016, Bayer filed a suit in the US District Court for the District of Delaware against Nektar Therapeutics and Baxalta, alleging that Baxalta’s factor VIII protein product, Adynovate, infringes Bayer’s US patent number 9,364,520.

Bayer filed another claim in August last year, seeking a declaration that its treatment for haemophilia A doesn’t infringe the defendants’ patent, US number 7,858,749.

Bayer claimed that its legal predecessor signed a confidential disclosure agreement with Nektar allowing Bayer to share information on its proprietary research with Nektar.

After further research, Bayer developed BAY 94, a pegylated recombinant human factor VIII. It filed Biologics License Application number 125661 for BAY 94 on August 30 2017 (the same day the lawsuit was filed), seeking approval for the treatment of haemophilia A.

One month later, in September 2017, Baxalta and Nektar filed a suit in Delaware, alleging that BAY 94 infringes Nektar’s patents.

The same month, Bayer dropped its claim based on the ‘749 patent and instead sought declaratory judgment on the Nektar patents asserted in Baxalta’s suit.

In the order denying the defendants’ motion to dismiss, District Judge Lucy Koh noted that the defendants’ contacts with California are not so substantial as to render Nektar Therapeutics and Baxalta “essentially at home” in California.

Bayer claimed that the court had specific jurisdiction because the Nektar patents had been commercialised in California and because of Baxalta’s ongoing obligations pursuant to a licensing agreement.

Koh said that efforts to commercialise a patent are not relevant contacts for the purposes of a specific jurisdiction analysis in the declaratory judgment context, and that the licensing agreement doesn’t confer jurisdiction.

“The court finds that it is in the interest of justice to transfer this case to Delaware so that it can be heard by the judge who is already hearing the parties’ two related Delaware actions,” she said.

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