Samsung v Alexion [2024] EWHC 1407 (Pat)

6 June 2024

James Whyte appeared for the claimant (“Samsung”) in its successful application to expedite a trial, in which Samsung seeks to revoke a patent owned by the defendant (“Alexion”).

The patent, which was granted earlier this year, is said to give Alexion refreshed rights over the antibody drug eculizumab. Eculizumab is an orphan drug which is used to treat the rare conditions “PNH” and “aHUS”. Alexion enjoyed product protection over the drug for the full term of the basic patent and an SPC. Samsung and Amgen (a party to a parallel case that will be heard at the same time) have developed biosimilars which they intend to market.

Samsung argued a trial was urgent (as is required for a litigant to be entitled to expedition) due to Alexion having contacted various clinicians and national authorities, including the NHS, to put them on notice of its patent rights. This was alleged by Samsung to create a chilling effect, since the risk of litigation would discourage clinicians from prescribing Samsung’s biosimilar. Further, Samsung submitted there would be utility in obtaining a swift UK judgment for use in parallel UPC proceedings, where there is a risk of an interim injunction which could worsen the chilling effect.

Meade J granted expedition. The risks identified by Samsung were sufficient to clear the necessary threshold for real, objective urgency. The balance of the other relevant factors favoured a direction that the trial be listed for no earlier than mid-February 2025, but to attempt to have the trial heard any earlier would inconvenience other litigants whose hearings had already been listed.

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