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Synthon B.V. and Synthon S.R.O. v. Teva Pharmaceuticals Europe B.V., Teva Pharmaceutical Industries Ltd, Court of Appeal Amsterdam, The Netherlands, 23 August 2022, Case no. ECLI:NL:GHAMS:2022:2417

Competence of the Dutch Court regarding alleged unlawful enforcement of patents outside the Netherlands. Court of Appeal defers further decisions  pending the decision of the European Commission following an investigation into possible anti-competitive behaviour.

Teva Ltd. was the exclusive licensee of the patent EP 0 762 888 (hereinafter: EP 888 ) concerning a medicinal product used for the treatment of a certain form of multiple sclerosis. This patent expired on 23 May 2015. The Czech national equivalent of EP 888 is the patent CZ 292247 (hereinafter: CZ 247). Furthermore, Teva Ltd. holds patents EP 1 799 703 (hereinafter: EP 703) based on the same application, EP 2 177 528 (hereinafter: EP 528) divisional thereof and EP 2 361 924 (hereinafter: EP 924) divisional of EP 528. The Czech Board of Appeal of the European Patent Office revoked EP 703 on February 10, 2015, EP 528 on October 14, 2015 and EP 924 on September 12, 2017.

Teva B.V. is responsible for marketing the Teva group’s products in Europe. Copaxone is the brand name under which the Teva group markets the medicine. Synthon et al. have developed a generic version of the drug. This medicine was produced in a manufacturing facility in the Czech Republic. Alvogen has, or plans to, market this product under the Remurel name in some European countries.

Pursuant to CZ 247 and/or the (relevant national parts of) EP 528 and/or EP 924, enforcement actions have been taken against Synthon s.r.o in the Czech Republic and against Alvogen in Croatia, Slovenia, Estonia, Latvia and Slovakia. All legal acts taken in connection with these enforcement actions have been made in the name of Teva Ltd. All bans and measures imposed have now been lifted.

In March 2021 the European Commission issued launched a formal investigation into possible anticompetitive conduct of Teva in relation to Copaxone.

As a result of the enforcement measures based on the patents in the countries concerned, Synthon et al. are claiming declaratory judgments in the main proceedings. They are intended to establish that Teva has acted unlawfully towards Synthon and/or is unjustifiably enriched at the expense of Synthon. Synthon et al. based this on the fact that Teva et al. tried to ensure that Synthon et al. and their customer Alvolgen would not be able to market the generic version of the medicinal product or as late as possible by (involvement in) wrongfully enforcing patents relating to to the medicine.

The court in first instance has ruled that it has no jurisdiction to hear the claims against Teva Ltd. Synthon et al.’s complaints are directed against this decision and the reasoning on which it is based. In addition, Synthon demands that further decisions are deferred.

The Court of Appeal rules that:

“It follows from the statements of Synthon et al. that there is such a connection between the claims against Teva B.V. and Teva Ltd that reasons of efficiency justify joint handling of the claims of Synthon et al. The claims against Teva et al. are largely based on the same set of facts (enforcement of the patents in the countries concerned). Based on this, related claims have been filed that can lead to joint and several liability. It follows from this that the same situation, factual and legal, is at issue. Joint handling of these claims prevents different judges from having to answer the same questions and to give conflicting decisions about joint and several liability.

“In view of the press release from the European Commission, an investigation is underway into possible anti-competitive behavior by Teva et al with regard to Copaxone, which may also relate to the factual basis of Synthon et al.’s claims in these proceedings, in which Synthon et al argue that Teva et al. have tried, by enforcing the patents in the countries concerned, to ensure that Synthon et al. and their customer Alvolgen would not be able to market the generic version of the medicine or be as late as possible. That investigation has not yet been completed. In this state of affairs, it cannot be ruled out that decisions in these proceedings may conflict with the decision that the European Commission will issue following the current investigation. The detention of the proceedings claimed by Synthon et al. in the incident prevents such conflicting decisions.”

The Court of Appeal defers further decisions until the decision of the European Commission.

A copy of the decision (in Dutch) can be read here.