Apotex Appeals Court Biosimilar Ruling
Apotex is asking the Federal Circuit Court of Appeals to review a lower court decision granting Amgen a preliminary injunction blocking Apotex from launching its biosimilar pegfilgrastim for 180 days after receiving FDA approval and giving notice of commercial marketing. A Big Molecule Watch blog post says that Apotex is arguing that because the two parties completed the Biologics Price Competition and Innovation Act (BPCIA) “patent dance” before the lawsuit was filed, a notice of commercial marketing is not required. Apotex says that the Amgen suit against it is different from Amgen v. Sandoz, in which Sandoz chose not to participate in the patent dance and was required to provide 180 days’ notice of commercial marketing.
Apotex also argues in its appeal that making the 180-day notice period mandatory in all cases, rather than only in cases when the biosimilar applicant chooses not to participate in the patent dance, would amount to a de facto extension of the 12-year exclusivity period provided under the BPCIA.