Delaware Court Denies Motion to Consolidate Filgrastim Cases Against Pfizer

The U.S. District Court for the District of Delaware has denied Amgen’s motion to consolidate a recently filed action against Pfizer and its affiliate Hospira relating to Hospira’s filgrastim biosimilar with an ongoing litigation between the parties involving the same product, which is set for trial in May 2021.  As we previously reported, Amgen filed this new lawsuit alleging that Pfizer and Hospira’s filgrastim biosimilar infringes U.S. Patent No. 10,577,392, a related family member of U.S. Patent No. 9,643,997 that is the subject of the earlier, ongoing litigation.

The District Court ruled that “[t]he Court will not consolidate [the second] action with any other action absent Defendants’ agreement.”  In denying Amgen’s motion, the District Court noted that Amgen had filed the earlier action on July 18, 2018, and “waited until April 24, 2020” to file the second case.  “Defendants reasonably agreed to consolidate the two cases if the parties agreed to use in the consolidated case the same experts employed by the parties in” the original suit, but Amgen “refused to agree to this request.”  The Court held that Amgen “should bear the consequences of litigating separately an action it filed almost two years after it filed” its original lawsuit.

The District Court also noted that it would “entertain” a motion from the defendants to stay the second case, which is due no later than July 10, 2020.