Eli Lilly secures major win in its long-running patent dispute with Fresenius Kabi over oncology drug Alimta
London, Paris, 16 September 2020 – Eli Lilly has secured a major win in its long-running patent dispute with Fresenius Kabi over oncology drug Alimta. Eli Lilly was represented by a Hogan Lovells team led by Stanislas Roux-Vaillard.
On Friday, the Paris Court of First Instance handed down its judgment on the merits in the case, ruling that the firm’s generic version of pemetrexed disodium infringes on Eli Lilly’s European patent in France (EP 1 313 508).
The court ordered Fresenius Kabi to pay Eli Lilly damages in the amount of EUR 28 million, the highest provisional damages award ordered in a life sciences patent dispute in France.
Unlike other recent patent infringement judgments in other European jurisdictions based on the so-called ‘doctrine of equivalents’, the court in France found that there was ‘literal infringement’, meaning that Fresenius’ product infringes each and every essential claim feature of Eli Lilly’s Alimta patent.
Following the judgment, Fresenius Kabi will need to stop commercialization of its infringing generic product on the market.
The decision may be appealed to the Court of Appeal of Paris.
Stanislas Roux-Vaillard, partner at Hogan Lovells, commented: “The judgment is a game-changer for patent infringement cases in France, particularly when it comes to Swiss-type claims. It signals a sea change in the way the French courts approach pharma patent infringement cases, with patents now immediately enforceable and ever-higher damages for infringers. To my knowledge the previous highest damages award in France was EUR 10 million, so the amount ordered by the court this time is significant.”
The Hogan Lovells team advising Eli Lilly in France also included associate Adrien Bonnet. Fresenius Kabi was represented by Elisabeth Berthet at Promark.
Hogan Lovells is also representing Eli Lilly in other European jurisdictions. In 2017 a London team led by partners Daniel Brook and Stephen Bennett secured a landmark win for Eli Lilly against Actavis. More recently in 2020, a German team led by Andreas von Falck and Stephan Neuhaus secured a patent win for Eli Lilly before the German Supreme Court. There are also ongoing proceedings in the Netherlands, where Eli Lilly is represented by Hogan Lovells partner Klaas Bisschop and Italy where Eli Lilly is represented by Hogan Lovells partner Giovanni Ghirardi.
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