Court swats AbbVie application for summary judgment against FKB
The English High Court has dismissed an application for summary judgment from pharmaceutical company AbbVie.
AbbVie had applied for summary judgment, or alternatively for the court to strike out proceedings as an abuse of process, in a patent case filed against the company by Japan-based drug maker Fujifilm Kyowa Kirin Biologics (FKB).
But Mr Justice Henry Carr dismissed the application on December 29, in the latest in a series of applications by AbbVie to “avoid a trial” in the UK, according to Carr.
Back in September 2016, LSIPR reported that the court had dismissed an application to strike out the case.
FKB had intentions to launch a drug called FKB327 and had attempted to clear the way of any necessary patents.
FKB327 is a biosimilar of AbbVie’s Humira (adalimumab), which is used in the treatment of rheumatoid arthritis.
In an interim judgment in March, the court allowed FKB to amend some of its arguments in the patent dispute, while rejecting an application by AbbVie to have some of the pleadings thrown out.
Both of these judgments were issued by Carr. Appeals by AbbVie were heard on November 28 and 29, and judgment was reserved.
In November last year, AbbVie informed FKB that it had removed the UK protection from one of the patents-in-suit, EP UK 2,940,044.
It also informed the European Patent Office that it no longer approved the text of another patent, EP UK 1,944,322, while indicating that it was prepared to have the EP UK 1,737, 491 patent revoked in the UK.
AbbVie also offered not to obtain any patent protection in the UK that would be infringed by the claimant’s biosimilar products.
The pharmaceutical company argued that given these changes, there was now “no real prospect of a court finding that the declarations sought serve a useful purpose” and that the “continuation of these proceedings would be an abuse of process, and a disproportionate waste of court resources”.
Carr disagreed, giving one reason that as “AbbVie will not submit to judgment or provide an acknowledgement in terms of the declarations”, there must be a “useful purpose” to FKB in obtaining declaratory relief.
“This is a case where a great deal is at stake. The size of the UK market is huge. There is a real prospect that the court will consider that the grant of the declarations will serve a useful purpose, and that this is the reason why AbbVie continues to resist them,” added Carr.
