[Ip-health] KEI Files Amicus Brief in GlaxoSmithKline vs Teva Induced Infringement Case

Claire Cassedy claire.cassedy at keionline.org
Thu Dec 17 07:58:00 PST 2020


https://www.keionline.org/34838

KEI Files Amicus Brief in GlaxoSmithKline vs Teva Induced Infringement Case

Posted on December 17, 2020 by Claire Cassedy

On Wednesday December 16, 2020, Knowledge Ecology International (KEI) filed
an amicus curiae brief in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA,
Inc. (“GSK”, “Teva”). The case concerns secondary indications of medicines,
and whether Teva induced infringement of GSK’s product, Coreg, though
Teva’s product was initially approved for the older indication Coreg
addressed (which was off-patent). The Federal Circuit reinstated the jury’s
verdict that Teva had induced infringement in a 2-1 opinion. KEI filed its
amici in Teva’s appeal of that decision.

In KEI’s brief, we note the court’s challenge in trying to balance both
patent protections and access to medicines for the public, when trying to
decide cases concerning possible infringement by pharmaceutical companies.
In the dissent, it indicates that the decision may have been motivated by a
desire to incentivize companies to undertake research on new uses of
medical products that have previously been approved by the US FDA for other
indications.

KEI’s brief seeks to lay out for the court that while patents provide an
incentive for investments in research on new uses, the patent system is
poorly designed for such a purpose, and may provide either excessive or
inadequate protection for new uses. Further, the enforcement of patents on
new uses is only one of many mechanisms that are available to directly
fund, subsidize or reward such investments, and not the most efficient, in
this case creating a deep and consequential conflict between innovation
incentives on the one hand, and affordability and access to unpatented
inventions on the other.

Therefore, if the court is motivating its decision in this case through the
lens of seeking to incentivize R&D in new uses of existing treatments,
there are many other policy mechanisms and proposals that address that
issue, and it should not be the motivating factor of this decision
regarding infringement.

For KEI’s full amicus brief, please see:
https://www.keionline.org/wp-content/uploads/KEI_Amicus_Brief_GSK_v_Teva_16Dec2020.pdf

Link to the case:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1976.OPINION.10-2-2020_1663180.pdf

For more information on the GSK v. Teva case, see:

https://patentlyo.com/patent/2020/10/inducing-infringement-available.html
https://www.cooley.com/news/insight/2020/2020-10-06-gsk-v-teva-induced-infringement-liability-despite-skinny-label
https://www.fiercepharma.com/pharma/gsk-scores-appeals-as-court-orders-teva-to-pay-235m-for-induced-infringement


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