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3 June 2020EuropeRory O'Neill

Teva to face inhaler infringement allegations in UK court

Israeli generic drugmaker  Teva Pharmaceuticals must face infringement claims related to an asthma inhaler, an English judge has  ruled.

Teva has applied to have three UK patents owned by Italian rival  Chiesi Farmaceutici invalidated by the English High Court.

The patents cover Chiesi’s Fostair inhaler, which uses a combination of beclomethasone and formoterol to treat acute asthma attacks. The Italian pharmaceutical company filed counterclaims of its own, alleging that Teva intended to infringe its patents before they expired in 2027.

Teva wanted the High Court to strike out the infringement claims, arguing that there was no evidence it intended to commit any infringing acts.

But in his ruling, issued yesterday, June 2, Justice Colin Birss said the fact that Teva had filed to have the patent revoked at all suggested that they intended to release an infringing product.

The Israeli generics maker has also filed to have the three Chiesi patents invalidated in Ireland, where Teva has a manufacturing plant supplying the UK market.

Teva’s actions followed a common pattern of “clearing the way” to launch a new product that would otherwise infringe a current patent, Birss said.

“The starting point for such a claim is usually the simple inference from the fact they have brought revocation proceedings, that the rival presumably intends to infringe by launching a product within the period before expiry of the patent. That is a perfectly sensible inference to draw. Otherwise why do this at all?,” the judge wrote.

Teva argued that anyone was allowed file a revocation action, and so it could not be inferred that it necessarily intended to infringe the patent. But Birss said this did “not follow”.

“In this case the earliest expiry date for the patents is in 2027. The inference from the fact that [Teva] has issued proceedings to revoke the patents is that the claimant intends to sell a product protected by the patent before 2027,” the High Court judge said.

Teva had a “clear opportunity” to say it had no intention to launch a product unless it succeeded in revoking the patent in correspondence with Chiesi, but didn’t do so, he added.

The judge also declined Teva’s request to stay the infringement actions, and said Teva must proceed with disclosure.

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