Bird & Bird wins 5 year patent battle for Aventis and TKT

25 October 2004

Landmark decision achieved with patent found not infringed and invalid

International law firm Bird & Bird has just won a 5 year battle for Aventis and Transkaryotic Therapies, Inc. (“TKT”) against biotech company Kirin-Amgen, Inc. (“Amgen”), relating to Dynepo, the companies’ erythropoietin drug used for the treatment of anaemia. The House of Lords decided last Thursday that Dynepo™, their Gene-Activated erythropoietin product jointly developed and produced by Aventis/TKT, does not infringe European Patent No 0148605B2 and further that the patent claims asserted against Aventis/TKT are invalid. This is the first case dealing with patent infringement under current UK patent law to reach the House of Lords (the UK’s highest court) and provides important clarification on how patents will be interpreted and enforced by the courts.

As probably the largest and most significant patent infringement case in the English Courts of the last 10 years, the case has been extensively litigated since Bird & Bird commenced the action on behalf of Aventis/TKT in 1999 by asking the High Court for a declaration that Dynepo™ does not infringe Amgen’s patent and that certain of the patent claims are invalid. The decision upholds in part the decision of the Court of Appeal in which it ruled that although valid, the patent was not infringed by Dynepo.

Commenting on the decision, Michael J. Astrue, President and CEO of Aventis-TKT said:“We are delighted to have our legal position vindicated again in the British Courts. We look forward to making Dynepo available to patients in the European Union in late 2005 or early 2006.”

Proceedings were led by partners Trevor Cook and David Wilson with assistance from Patrick Kelleher. Commenting, David Wilson added:

"This is a very significant judgment in that it provides welcome clarification of the law relating to the infringement of patents, especially in today’s world of extremely fast-moving technologies. It also brings the law in the UK relating to the permissibility of certain patent claims into step with the rest of Europe.”

For more information on Bird & Bird, please contact Larry Cattle on +44 (0) 20 7415 6156.