Monday, May 11, 2020

German Federal Supreme Court Affirms Denial of Compulsory License

I'm a little dilatory in reporting on this decision, which was handed down last June.  Here is a link to the Judgment of June 4, 2019, X ZB 2/19 (BGH); the opinion is also published at pp. 400-05 of the September 2019 issue of  Mitteilungen der deutschen Patentanwälten.  The patent owner, which markets a drug under the brand name "Repatha," the active ingredient of which is a biologic, evolocumab, filed an infringement action against a company that markets a drug under the brand name "Praluent," the active ingredient of which is alirocumab.  The defendant then filed its own action in the German Patent Court for a compulsory license.  The Patent Court denied the application, and the Federal Supreme Court affirms.  The Court agrees that the movant did not engage in reasonable efforts to come to terms with the patent owner, and also that its drug does not have significantly better properties than Repatha (which is relevant to the public interest factor).  Discussion can be found in posts by Alexander Haertel and Martin Koszycki on EPLaw; by Benjamin Beck and Christoph J. Crützen on Mayer Brown's website; by Dr. Anja Lunze on TaylorWessing's website; by Kerstin Otto on Bird & Bird's website; and by Dr. Alexander Harguth on Preu Bohlig's website.  In addition, Martin Stierle has published an article in the January 2020 issue of GRUR (pp. 30-34) titled Neues von der patentrechtlichen Zwangslizenz:  Ein Überblick anlässlich BGH «Alirocumab» ("News concerning compulsory licensing of patents:  An overview of the BGH "Alirocumab" decision"). Professor Stierle contrasts the decision here with the BGH's 2017 decision in Isentress, which approved a compulsory license (for previous discussion on this blog, see here, here, here and here).

On a related topic, Francois Pochart, Mathilde Rauline, and Océane de La Verteville published a recent two-part analysis of compulsory licensing under French law on the Kluwer Patent Blog (see here and here); and Dr. Victor Vaibhav Tandon and Dr. Akanksha Wadehra Tandon have published post on IPKat titled Revocations, special compulsory licenses, patent strategies & COVID-19: A note on Indian Patent Law.

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