Bayer itching to protect flea control range in patent suit

Bayer’s animal health division has filed for a declaratory judgment that SHP Chemical has infringed three patents covering a range of products that control fleas affecting cats and dogs.

The German chemical and pharmaceutical company filed the lawsuit on Friday (February 6) at the US District Court for the District of Nevada.

In October 2013, according to the suit, SHP informed Bayer that it had applied to the US Environmental Protection Agency (EPA) to register a similar product, formulated with the active ingredient imidacloprid.

The EPA is a US government body that protects human health and the environment, and plays a role in regulating flea and tick products for animals.

Imidacloprid is an insecticide used in Bayer’s Advantage II for Cats and Dogs, Advantage Multi for Cats and Dogs, and K9 Advantix II for Dogs products.

Bayer has cited the three patents it owns covering uses and formulations of imidacloprid to treat cats and dogs with fleas.

According to the complaint, the only EPA-approved use of imidacloprid in animal-related products involves the control of parasitic insects by topical application, which is covered by Bayer’s US patent 6,232,328.

Bayer argued that SHP’s proposed product will infringe one or more of its patents, which cover the three cited products.

The company said that it had asked SHP repeatedly for assurance that its proposed product would not infringe the three patents, but it did not receive any.

Bayer claimed that a letter from its counsel asking SHP to “identify any basis it has to believe that it is not infringing, inducing infringement, or contributing to infringement” did yield a response shortly after it was sent, in October 2013, but SHP did not clarify its position.

“[SHP] are not willing to reveal in writing any basis for the belief that they are not infringing, inducing infringement or contributing to the infringement of any Bayer patent,” according to Bayer's complaint.

Bayer also claimed that another letter it sent to SHP later in October 2013, again asking for clarification, was not responded to.

Bayer has asked for a declaration that the proposed sale of SHP’s product would infringe the three patents, and a preliminary and permanent injunction stopping SHP from infringing the patents.

The German company has also asked that if the product is commercialised it receives damages, which will either be compensation for lost profits or a “reasonable royalty”.

SHP’s product has not yet been finally approved.

Bayer did not respond to a request for comment. SHP could not be reached for comment.