Members of Chambers recently appeared for both sides in one of the few damages inquiries on a cross-undertaking in patent litigation to have been taken through to judgment. Daniel Alexander QC appeared for AstraZeneca (“AZ”) and Andrew Lykiardopoulos (led by Bernard Livesey QC) appeared for KRKA d.d. Novo Mesto and Consilient Health Limited.
AZ had given a cross-undertaking upon obtaining an interim injunction against KRKA/Consilient’s UK launch of the proton pump inhibitor product Emozul. AZ held a patent relating to esomeprazole, the active pharmacological agent in Emozul. The interim injunction was later discharged and Krka/Consilient claimed damages for being kept of the market for around a year.
The principal dispute on the inquiry was over the appropriate way in which to assess the damage that had resulted from KRKA/Consilient’s loss of “first mover” advantage. By the time KRKA/Consilient were able to launch Emozul, it was into a substantially genericised market. Further, Emozul is not directly substitutable with AZs product Nexium and requires a change in prescription from a tablet to a capsule formulation. In these circumstances, the parties were far apart in their assessment of the possible loss.
Rejecting the comparative approach proposed by AZ, Sales J held that it was appropriate to rely on the fact evidence of PCT medicine managers as to their likely switching practice had the injunction not been granted. In so doing the judge broadly upheld the assumptions used by KRKA/Consilient in coming to an estimate of their loss. Accordingly, the judge made a substantial award close to that sought."