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Sunday, 4 May 2008

Court keeps narcotic litigation up to speed

IP litigation can be facilitated by good organisation and forward planning. Ratiopharm (UK) Ltd v Alza Corporation; Alza Corporation v Sandoz Ltd, decided last week, is a case in point, this being a Patents Court (England and Wales) ruling of Mr Justice Floyd. So far, it appears to be available only on the subscription service of Lawtel.

Alza applied for an order to join two proceedings concerned with alleged infringements of its European patent for transdermal patches for the narcotic fentanyl. Ratiopharm applied to revoke that patent, while Alza counterclaimed for infringement. A trial date was listed for November 2008. Meanwhile Alza discovered that another competitor, Sandoz, was making and selling a product which Alza believed to be an infringement of the same patent. Alza wrote to Sandoz in October 2007, alleging infringement, but didn't actually initiate proceedings against Sandoz until January of this year. In that action, Sandoz counterclaimed for revocation.

In this application Alza applied for an order that all the matters in dispute between itself, Ratiopharm and Sandoz be heard together. Ratiopharm was prepared to go along with this so long as the trial date of November 2008 was preserved. Sandoz was not so happy, though, arguing that in the context of the delays that had been caused by Alza in not issuing proceedings as soon as it made its allegations of infringement, Sandoz couldn't prepare itself for trial in time for November 2008.

Floyd J granted Alza's application. In his opinion, once Sandoz received Alza's letter alleging infringement in October 2007, the company should have been galvanised into preparing itself for potential litigation. In reality, however, it appeared that Sandoz had done nothing. Nor could Sandoz invoke Alza's delay in instigating proceedings as a defence to its own inactivity. Finally there was no convincing evidence to support the conclusion that Sandoz would not be ready for trial in November 2008.

The IPKat thinks this must be right. If Sandoz is inconvenienced by its own earlier inactivity, it must be prepared to raise its level of activity now. It's a bit like being in the air terminal when your flight is called: if you hear the call but carry on shopping in the duty-free shop, you may have to run to the boarding gate later. Merpel adds, it would be good to know how far Ratiopharm would be able and willing to cooperate with Sandoz in getting the latter's case ready for trial.

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