Florida Court Backs Apotex in Biosimilar Patent Case
The Southern Florida District Court has ruled that Apotex’s proposed filgrastim and pegfilgrastim biosimilar products will not infringe the asserted claims of Amgen’s ’138 patent (U.S. Patent. No. 8,952,138). Apotex had contended that the process described in its aBLAs falls outside the scope of the patent’s asserted claims. The court found that Amgen had “not met its burden to prove that Apotex's process for refolding filgrastim and pegfilgrastim infringe, either literally or under the doctrine of equivalents, each limitation of the ’138 patent.” Additionally, the court found that Apotex has established that its process, as described in aBLAs, does not infringe the ’138 patent.
Notwithstanding Apotex’s win on the patent issue, the court permanently enjoined it from launching its product until after its 180-day notice of intent to market its product has elapsed, which may not be given until after Apotex gains approval from the FDA to market its product.