Paris Court of first instance, 11 September 2020, Eli Lilly and Company & Lilly France v. Fresenius Kabi France & Fresenius Kabi Groupe France, docket No. 17/10421
This is a major win for Eli Lilly's pemetrexed patent in France and appears as a "game changer".
In July 2016, before the expiration of Eli Lilly's patent rights, Fresenius Kabi has marketed, in France, a generic of Alimta®, called "Pemetrexed Fresenius Kabi".
Eli Lilly sued Fresenius Kabi, claiming that it has already achieved an injunction on the sale of infringing pemetrexed products in Germany, UK, Switzerland, Italy, Sweden, Austria, Finland, Denmark, Portugal, Spain and in the Netherlands, in the ongoing dispute over its cancer drug Alimta®.
The French Court held there is no matter for the invalidity of the patent, and that regarding the description of the patent, the invention could be implemented, and constitutes an undeniable technical advance.
In conclusion, the Court ordered Fresenius Kabi to pay 28,000,000 € as damages, the highest amount ever granted by a court in Europe for damages for patent infringement.
More precisely, the US company Eli Lilly has obtained damages of 8,000,000 €, in compensation for the infringement suffered.
And then, the French company Lily France, a French distributor of Alimta®, has obtained damages of 20,000,000 €, on the ground of unfair competition. In France, the distributor of a patented product, when he is not a licensee, may claim damages from the infringer on the basis of unfair competition.
The decision may be appealed to the Court of Appeal of Paris. But the issue seems quite determined. It signals a sea change in the way the French courts approach pharma patent infringement cases, with patents now immediately enforceable and ever-higher damages for infringers.
Please note this blog post was written by a Clifford Chance LLP employee. Clifford Chance LLP is the parent company of Clifford Chance Applied Solutions (CCAS). The content within this post does not constitute legal advice.