English Patents Court declines to dismiss Anti-Suit Injunction claim against Bermuda biotech company

The Supreme Court of Bermuda often grants Anti-Suit Injunctions in favour of Bermuda companies (both on an interlocutory basis and on a final basis), with a view to protecting them against vexatious or oppressive litigation brought in foreign jurisdictions, and to protect them against proceedings brought in breach of an exclusive jurisdiction agreement or arbitration agreement.

The shoe may now be on the other foot, however, as a result of the pending patent litigation between Fujifilm Kyowa Kirin Biologics Company Ltd and AbbVie Biotechnology Ltd.

In this case, Mr. Justice Arnold is being asked to grant a final and permanent Anti-Suit Injunction against a Bermuda company, AbbVie Biotechnology Limited (AbbVie Bermuda).

The litigation has been described in a recently reported (and very interesting) interlocutory judgment of the English High Court’s Patents Court in the case of Fujifilm Kyowa Kirin Biologics Company Ltd v Abbvie Biotechnology Ltd & Anor [2016] EWHC 2204 (Pat) (08 September 2016).

As the judge has explained in his interlocutory judgment, AbbVie Bermuda is the proprietor of European Patent (UK) No 0 929 579 (“the Basic Adalimumab Patent”), which protects the monoclonal antibody adalimumab, and of SPC/GB/04/002 (“the SPC”), which extends the protection conferred by the Basic Adalimumab Patent in respect of adalimumab.

Adalimumab is a monoclonal antibody specific for human tumour necrosis factor α, which is a cell signalling protein the misregulation of which is implicated in several human inflammatory diseases including rheumatoid arthritis, psoriatic arthritis, psoriasis, Crohn’s disease and ulcerative colitis.

The SPC will expire on 15 October 2018. Adalimumab is marketed by companies in the group of companies headed by AbbVie Inc. under the trade mark Humira. Humira is the highest selling prescription drug in the word, achieving net sales in 2014 in excess of US$12.5 billion. In the United Kingdom Humira is marketed by the Second Defendant (“AbbVie UK”), a company incorporated in England. AbbVie UK achieved a turnover of £438.6 million in Humira in 2014 i.e. some £1.2 million a day.

AbbVie Bermuda has filed applications for numerous secondary patents protecting dosing regimens, formulations and uses of adalimumab (“the Secondary Applications”). AbbVie Inc. has also indicated its intention vigorously to enforce its adalimumab patent portfolio and to seek injunctive relief.

The claimant in the litigation, Fujifilm Kyowa Kirin Biologics Company Ltd (“FKB”), intends to launch a product code-named FKB327 which is biosimilar to adalimumab in the UK when the SPC expires.

In order to avoid the risk of any claims of patent infringement, FKB has commenced proceedings in the English High Court against AbbVie Bermuda seeking, amongst other things, Arrow declarations, following the precedent set in Arrow Generics Ltd v Merck & Co Inc [2007] EWHC 1900 (Pat), [2007] FSR 39 (“Arrow“), and an Anti-Suit Injunction against AbbVie Bermuda restraining it from threatening or commencing proceedings against FKB for patent infringement.

AbbVie Bermuda applied to have FKB’s claims against it summarily dismissed, both on the merits and on jurisdictional grounds (arguing that the claim was a “phantasm and unsupportable“): but Mr. Justice Arnold rejected AbbVie Bermuda’s applications, directing that the claims should be allowed to proceed towards a full trial in due course.

One of the unusual features of the Anti-Suit Injunction being sought by FKB in this case is that it is a domestic ASI, not a foreign ASI (i.e. an injunction seeking to restrain proceedings being brought by AbbVie Bermuda in an English court rather than a foreign Court).

In this respect, Mr. Justice Arnold has concluded that the claim is an arguable one, since “the court has power to grant a domestic anti-suit injunction against a defendant in respect of whom it has in personam jurisdiction on the ground that the proceedings which the defendant threatens to bring are vexatious or oppressive or an abuse of process. This power must be exercised with considerable caution. In particular, it will rarely be justified to grant an injunction which restrains the commencement of proceedings other than the presentation of a winding up petition without the qualification that the restraint only applies if the defendant does not obtain the permission of the court first. But I do not accept that the power should only be exercised in circumstances where there are existing proceedings in which the relevant issue can be determined (even if only as against different parties to those against whom the proceedings are threatened)”.  

A full copy of the judgment is available here: http://www.bailii.org/ew/cases/EWHC/Patents/2016/2204.html

There is also some discussion of the judgment, and the litigation more generally, at the following websites:

 

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