English court resumes Amgen cholesterol patent suit
The English High Court has lifted a stay on Amgen’s lawsuit which accused Sanofi-Aventis and Regeneron of infringing a patent covering pharmaceuticals which treat elevated cholesterol levels.
Yesterday, October 22, Justice Anthony Mann released defendants Sanofi-Aventis and Regeneron from an agreement to be bound by a forthcoming European Patent Office (EPO) decision on the patent’s validity.
The English action had been stayed in February 2015, in light of the EPO proceedings. Under the 2015 order, any of the parties were at liberty to apply to lift the stay if the EPO’s final decision had not been made by February 29, 2020.
A hearing before the EPO’s Technical Board of Appeal was scheduled for March this year, but the hearing was adjourned and rescheduled for October 28-29. The defendants applied to the English court to lift the stay earlier this month.
Mann rejected Amgen’s argument that Sanofi-Aventis and Regenergon were not entitled to have the stay removed “simply on demonstrating the passage of time beyond the dates” in the order.
Amgen’s counsel argued that the court needed to intervene and decide whether, on all relevant facts, the stay should be removed.
“I do not consider that the defendants have to demonstrate anything other than a desire to have the stay removed,” said Mann.
The judge explained that while the stay may have been agreed to “give the EPO a chance to get to its various decisions”, it was not “an entirely case management stay”.
Mann added that this is apparent from the consequences of removal of the stay. Under the order, if the stay is not lifted by the time the EPO delivers its final decision, the defendants would be bound by its decision on the validity of the relevant claims.
“That is not a case management consequence; it is a substantive consequence in terms of the rights of the parties,” concluded Mann.
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