The past week saw further developments in the ongoing patent dispute between Janssen and Defendants Celltrion and Hospira relating to Inflectra® (infliximab-dyyb), a biosimilar of Remicade®.
First, on May 4, Janssen and Defendants filed competing motions for summary judgment. Both sets of summary judgment papers are directed to the same issue: whether or not an acceptable non-infringing alternative was available to Defendants such that Janssen’s infringement damages would be limited to a reasonable royalty rather than lost profits. Janssen argues that Defendants could not have avoided patent infringement by using an acceptable non-infringing alternative because there was no such alternative readily available at the time of first infringement and no non-infringing alternatives have been successfully implemented to date. Defendants counter that there were acceptable non-infringing alternatives to the asserted patent and that lost profits therefore are not an appropriate measure of damages.
As we previously reported, last month Defendants filed an initial motion for summary judgment of non-infringement, arguing that the Court should find non-infringement based on the doctrine of ensnarement, which, according to Defendants, “restricts a patentee from asserting a scope of equivalency under the doctrine of equivalents that would encompass the prior art.” Janssen’s opposition is due tomorrow.
Stay tuned to Big Molecule Watch for further developments.