Bonum Certa Men Certa

European Patent Expired, But $70,000,000 in 'Damages'

Summary: Injunctions and other legal actions turn out to be useful for companies like Amgen, but what about ordinary European companies?

EARLIER this week, Patterson Belknap Webb & Tyler LLP (more specifically, the firm's Andrew D. Cohen and Irena Royzman) published in a couple of lawyers' sites [1, 2] an article about a now-expired EPO patent, noting that it's about an Epogen (“EPO”) patent at EPO. To quote:



In one of the first Biologics Price Competition and Innovation Act (BPCIA) litigations to reach trial, a jury on Friday awarded Amgen $70 million in damages for Pfizer’s infringement of one of Amgen’s expired patents protecting Epogen€®. Notably, the damages relate to product that Pfizer is not yet approved to sell in the United States. The jury found that Pfizer’s subsidiary Hospira, in manufacturing its proposed biosimilar ahead of FDA approval, was not protected by the statutory safe harbor covering pre-marketing regulatory uses (35 U.S.C. €§ 271(e)(1)).


"The Court examined the EPO file history in detail," another article said today about another patent, which left us wondering how much was actually in the file's history now that examination is done in a rush (imagine how much that would cost when done at this level and these sky-high hourly rates). To quote IP Kat:



The Court examined the EPO file history in detail. In the text of the original patent application, the claims extended to the entire class of antifolates. It was subsequently limited by the patentee to 'pemetrexed', and finally to 'pemetrexed disodium'. These changes to the claims were consistent with changes to the EP '508 description. The Court noted that these changes were a 'clear delineation of patent protection', for only pemetrexed disodium. Other compounds, such as pemetrexed diacid were therefore excluded from the scope of the EP '508 claims. Further, while Fresenius' product has the same therapeutic effect as Alimta, the association of pemetrexed disodium associated with tromethamine could not also be considered an obvious substitution of the expression pemetrexed disodium in combination with vitamin B12. Any form of direct infringement, including on the basis of equivalents was excluded. Further, there was no indirect infringement - the SmPC of the generic product indicated that reconstitution and dilution would happen in a glucose solution, rather than a saline solution as specified in the claims of EP '508.


We are not bashing EPs or patents in the domain of chemistry. We are, however, demonstrating the implications of EPs going to court. Imagine what hundreds of thousands of dubious EPs, combined with a UPC-like regime, would entail.

Recent Techrights' Posts

Linux is Released Too Often, Tested Insufficiently (Same as Chromium, Firefox, and Systemd)
Driven by schedule, not quality (objective criterion)
When I discovered people trafficking in open source software
Reprinted with permission from Daniel Pocock
 
Visually Enhanced Interviews With ESR and RMS on Free Software (With French)
Nom de code - Linux
IRC Proceedings: Sunday, May 12, 2024
IRC logs for Sunday, May 12, 2024
Over at Tux Machines...
GNU/Linux news for the past day
GNU/Linux Rises to Record High in Macao
iOS and Android are very big there
When Lunatics Attack Your Family (Especially Women)
The attacks on my wife and my mom are rather revealing. These are acts of extreme misogyny.
Debian: Let's Pretend We Never Knew Daniel Pocock
Ad hominem is what happens when the message is hard to dispute
DPL Sam Hartman proves blackmail is alive and well in Debian
Reprinted with permission from disguised.work
What is a safe space?
Reprinted with permission from the Free Software Fellowship
Does Debian deserve an independent news service?
Reprinted with permission from disguised.work
Linux.com So Neglected If Not Abandoned That It Promotes Deals That Expired 4 Weeks Ago
Quite some "stewardship" by the Linux Foundation
The Fall of Meritocracy in Tech
nuff said
Microsoft Has Lost Malta
Android has caught up
In Asia, Baidu Has Become Bigger Than Bing and Yandex is Getting There Too
XBox and Bing are going through existential crises
"Having IBM Next to Your Name is a Scarlet Letter"
IBM staff just motivated not to work
Techrights Browsing Made Easier
a draft for discussion
Links 12/05/2024: XBox Founders Say Microsoft Lost Its Identity
Links for the day
Gemini Links 12/05/2024: Enshitification and Mind Maps
Links for the day
Aside From Red Hat Spam and Partisan Media There's a Lingering Rumour of Layoffs
Some rumour said IBM had second thoughts about a WARN notice and delayed that a bit
The Albanian open source community is very healthy indeed
Windows nosedives from 99.1% to a lot less
Web Sites Hijacked by WIPO on Behalf of Microsoft-Sponsored SPI (and People Looking to Hide Embarrassing Facts)
debian.chat; debiancommunity.org; debian.day; debian.family; debian.finance; debian.giving; debiangnulinux.org; debian.guide; debian.news; debian.plus; debianproject.community; debianproject.org; debian.team; debian.video
Julian Assange on Privacy of People, Even Little Children
Facebook/Google (or GAFAM, an acronym I coined with Assange) knows you better than your mom knows you
[Meme] Miscomprehension of GDPR
Social control in general is a ticking timebomb
In Haiti, the Market Share of Windows Collapsed (From 97% to 27% on Desktops/Laptops)
A couple of months ago Windows was measured at 3.04%
In Most Countries It's Still Possible Not to Have a 'Smartphone' and to Pay for Nearly Everything With Cash
Withdrawing money will be possible as long as enough people use many ATMs (cash machines)
Expect Lots of Material From Daniel Pocock as Election Day Nears
The experiences of Daniel Pocock were an excellent example of reprisal or retribution against either whistleblowers or people who give a voice to whistleblowers
I've Been Promoting Free Software for Over 25 Years
I wrote my first computer program when I was about 14, maybe a little younger (I have visual memory of it)
Reminder: Richard Stallman's Talk is This Week in Paris (and in French)
Defending rms isn't the same as defending everything he has ever said
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 11, 2024
IRC logs for Saturday, May 11, 2024
Online Bullying (Trying to Make People Unhappy)
Narcissists and bullies behind mice and keyboards, no honesty or fact-checking required
Talk About Software Freedom
"Linux" and "BSD" may mean a lot to more and more people, but they're still just brands or acronyms
Windows in South Korea: From 98.5% in 2010 to About 30% (Android Rises to Almost 50%)
Samsung ships like a million Linux devices per day
Improving Site Navigation for Easier Discovery and Catch-ups
This site is run by code we wrote ourselves
LibrePlanet 2024 Recordings
Let's hope independent recordings by viewers can help recovery of "lost talks" (recordings)
GNU/Linux Reaches 11% Market Share in the United States Of America - an All-Time High
The United States Of America is where the operating system started (Boston) and where Linus Torvalds works (Portland)
[Meme] Being Believed, Not Censored or Defamed
Daniel Pocock, Zini, and John Sullivan (FSF)
Links 11/05/2024: XBox Crisis, Spotify Exodus Continues
Links for the day
Gemini Links 11/05/2024: Why to Delete GitHub
Links for the day
In Europe, Bing Fell Every Month This Year, Lost a Considerable Share Since "Bing Chat" and All the Chatbot Hype
Microsoft's Bing has had many layoffs lately
Links 11/05/2024: Analysis of the Microsoft Crisis and Backdoor-Looking Bugs
Links for the day
Attacking the Messenger?
Stack Overflow and LLM licencing
Microsoft Fired Loads of Staff in Kenya, Which is Another Large Country Where GNU/Linux Has Grown a Lot
Microsoft pays Kenyans only 2 dollars an hour for an IT/office job
Knowing the True History of Debian, Owing to Irish Debian Developer Daniel Pocock (Currently Running to Become Member of the European Parliament)
Irish-Australian and scapegoat of a highly dysfunctional 'Debian family'
Attacking by Credentials
Modest people do not demand fancy titles
Microsoft Windows Used to Have 99% of the OS Market in Jordan, Now It's Just 13% (Less Than iOS)
Based on the data of statCounter, GNU/Linux in Jordan climbed from 0.62% in May 2014 to nearly 5% right now
More Nations Are Reaching and Exceeding 5% Market Share for GNU/Linux, Microsoft Wants to be Bailed Out Again
Microsoft is once again reaching out to Biden for a bailout - a subject we'll cover in a video some time this weekend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 10, 2024
IRC logs for Friday, May 10, 2024
[Meme] What Do You Call a Woman Who Does BDS on Free Software? Elana Hamasman.
Here are some confused thoughts
[Meme] Mission Aborted
Mission Aborted: cancel RMS
Taking Things Up a Notch
we strive/aim towards 15-25 new pages per day, i.e. around 500 per month or 6,000 per year