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Developments in Amgen v. Sandoz
Since the Federal Circuit’s July 21, 2015 decision in Amgen v. Sandoz, the biopharmaceutical industry and legal community have been paying close attention to the development of parties’ appeals in this continuing litigation. As anticipated by many, both Amgen and Sandoz filed petition for rehearing en banc on August 20, 2015. Additionally, on August 26, 2015, in an effort to keep Zarxio™ (a biosimilar of Amgen’s Neupogen® (filigrastim) product), off the market after September 2, 2015 (the last day of the 180-day exclusivity period), Amgen filed an emergency motion for an injunction pending en banc consideration. A copy of the petitions filed by Amgen and Sandoz for en banc review and Amgen’s emergency motion can be found here: Amgen – petition for en banc rehearing (8-20-2015) — 17681771 v1, Sandoz – petition for en banc rehearing (8-20-2015) — 17681773 v1.
Is the “Patent Dance” Optional or Mandatory?
On the issue of whether it is mandatory that a biosimilar applicant (Sandoz) disclose its biosimilar application (aBLA) and manufacturing information to a reference product sponsor (RPS (Amgen)) under section (l)(2)(A) of the Biologics Price Competition and Innovation Act (BPCIA), thus initiating the information exchange process known as “patent dance”, the panel (with Judge Lourie and Judge Chen forming the majority, and Judge Newman dissenting, on this issue) ruled that Sandoz did not violate the BPCIA by not disclosing its aBLA and manufacturing information. Specifically, the majority ruled that the only remedies available to Amgen under these circumstances were those based on patent infringement (under 42 U.S.C. § 262(l)(9)(C) and 35 U.S.C. § 271(e)). In other words, by the panel’s ruling, a biosimilar applicant may opt out of the initial disclosure requirement to avoid “patent dance” all together and only face patent infringement claims by the RPS without having to worry about BPCIA-based injunctions.
In its petition for rehearing en banc, Amgen emphasizes that the majority’s rule on this issue “is contrary to the plain language of the statute, and Congress’ intent that the BPCIA provide an integrated framework that balances the obligations and benefits of the Applicant and the Sponsor.” (Amgen Petition, at page 2). Specifically, Amgen argues that Congress tied an applicant’s choice to use the 351(k) pathway to providing its aBLA and manufacturing information to the sponsor (i.e. the “shall provide” and “information required” language of 42 U.S.C. § 262(l)(1)(B)(i)). (Amgen Petition, at pages 3-4). Quoting Judge Newman’s dissenting opinion that the BPCIA “ensure[s] that litigation surrounding relevant patents will be resolved expeditiously and prior to the launch of the biosimilar product,” Amgen argues that the statutory purpose also confirms the obligation of the biosimilar applicant to provide aBLA and manufacturing information. (Amgen Petition, at page 10).
Further, Amgen argues that the patent-based actions are not the exclusive remedies available to the RPS. Specifically, Amgen argues that section 262(l)(9)(C) of the BPCIA only prohibits a non-compliant biosimilar applicant (who chooses not to disclose the aBLA and manufacturing information) from bringing certain kinds of declaratory judgment actions, while that prohibition is lifted for the aggrieved party, namely, the RPS. (Amgen Petition, at pages 11-12). Amgen further argues that patent infringement actions are only “among the tools available to a Sponsor where an Applicant refuses to comply with the BPCIA[,]” and that the RPS and the court should be able to use “broad powers under federal and state laws to remediate the harms to . . . [the] property rights caused by an Applicant’s failure to comply with the BPCIA[,]” as the harms to the RPS are not limited to patent infringement. (Amgen Petition, at page 15).
Should Marketing Notice be given Pre-marketing or Post-approval?
On the issue of whether Sandoz may provide the 180-day marketing notice under section (l)(8)(A) only after obtaining U.S. Food and Drug Administration (FDA) approval of the biosimilar product (as opposed to any time that is at least 180 days prior to actually marketing) , the panel (with Judge Lourie and Judge Newman forming the majority, and Judge Chen dissenting, on this issue) held that the applicant may only give effective notice of commercial marketing after the FDA approval. Thus, for Sandoz (who failed to provide its aBLA and the required manufacturing information to the Amgen by the statutory deadline), the 180-day post-approval requirement is mandatory. Therefore, Sandoz may not market its biosimilar product until 180 days after March 6, 2015 (when post-approval notice was given to Amgen), i.e., September 2, 2015.
In its petition for rehearing en banc, Sandoz emphasizes that the BPCIA’s “notice provision simply calls for 180 days’ notice before an expected product launch. It does not require that the notice be after FDA approval.” (Sandoz Petition, at page 2, emphasis original). Sandoz argues that the panel’s interpretation of the pre-marketing notice provision distorts the statutory scheme of the BPCIA , which in effect “gives the sponsor an ‘extra-statutory exclusivity windfall’ – ‘a 180-day injunction beyond the express twelve-year statutory exclusivity period’.” (Sandoz Petition, at page 6, quoting Judge Chen’s dissenting opinion). Specifically, Sandoz argues that majority on this issue “reached that erroneous conclusion by focusing on the word ‘licensed’ in subsection (l)(8)(A).” (Sandoz Petition, at pages 3, 9-10). Sandoz also argues that the majority ruling “will frustrate Congress’s goal of having patent disputes resolved early so that biosimilars can be available to patients as soon as possible[,]” because its means that “in every situation where the parties participate in the patent exchange process, any not-yet-litigated patent disputes cannot even begin until after FDA approval.” (Sandoz Petition, at pages 7-8, emphasis original). Further, Sandoz argues that the majority erred by creating its own remedy (“a private right of action for an automatic, bondless injunction”), which is conflict with the BPCIA, because “[t]he only mechanisms in the BPCIA for enjoining commercial marketing are patent-based remedies.” (Sandoz Petition, at pages 10, 13). In addition, Sandoz argues that the majority also erred by enjoining Sandoz without regard to traditional equitable factors, despite the district court’s findings of no irreparable harm[,]” and that the injunction is “overly broad . . . going beyond marketing and . . . restricting the ability of Sandoz to import product[.]” (Sandoz Petition, at pages 13-14).
Emergency Motion
FDA approved Zarxio™ on March 6, 2015 for the same five indications approved for Neupogen®. On April 17, 2015, Amgen filed an emergency motion for an injunction pending appeal before the Federal Circuit, which the Court granted. In its decision on July 21, 2015, the Court ordered that the injunction extend only through September 2, 2015.
The emergency motion filed by Amgen on August 26th requests that the Federal Circuit enter a temporary injunction to preserve the status quo, namely, prevent Sandoz from launching its biosimilar product Zarxio™, while the Court considers whether to grant Amgen’s petition for rehearing en banc, and if granted, while the en banc Court decides the appeal.
Specifically, Amgen alleges that the full scope of its requested remedy cannot be considered or awarded by the district court if Sandoz launches its biosimilar product, and that Sandoz’s launch will fundamentally and permanently alter the market, causing irreparable harm to Amgen if the en banc Court ultimately decides the issues in favor of Amgen. Accordingly, Amgen argues that the en banc Court’s ability to grant Amgen the relief it seeks (namely, remand to the district court to fashion a remedy for Amgen, including injunctive relief) requires that the status quo be preserved beyond September 2 through the full pendency of this appeal. Of note, Sandoz’s response to Amgen’s petition for rehearing en banc is due by September 8, 2015.
2. First IPR Institution Decisions for Biosimilars
In July 2015, the Patent Trial and Appeal Board (PTAB) instituted two inter partes review (IPR) proceedings filed by Boehringer Ingelheim (Boehringer) concerning patents relating to Rituxan® (rituximab). Specifically, on July 14th and July 17th the PTAB instituted IPR proceedings in U.S. Patent Nos. 7,976,838 (IPR2015-00417) and 7,820,161 (IPR2015-00415), respectively. Additionally, on July 13th, the PTA denied institution on a third rituximab IPR petition filed by Boehringer concerning U.S. Patent No. 8,329,172 (IPR2015-00418). A copy of these decisions can be found here: IPR-2015-00415-Institution-of-IPR, IPR2015-00417_Institution-of-IPR- , IPR2015-00418_Decision-Denying-Institution-of-IPR.
On August 12, 2015, Boehringer filed a request for rehearing of the PTAB’s decision to decline institution of the IPR concerning U.S. Patent No. 8,329,172 (IPR2015-00418). A copy of the request for rehearing can be found here: BI-IPR2015-00418-Request-for-Rehearing
Finally, on August 14 and 17th, Celltrion, Inc. (Celltrion) filed petitions for IPR of U.S. Patent Nos. 7,976,838 and 7,820,161 along with motions to join the two instituted IPR proceedings for these patents (namely, IPR2015-00417 and IPR2015-00415).
3. FDA Provides Guidance on the Naming of Biological Products
On August 27, 2015, FDA published a draft guidance containing its much anticipated views on the nonproprietary naming of biological products. According to the guidance, FDA’s current thinking is that shared nonproprietary names are not appropriate for all biological products and “[t]here is a need to clearly identify biological products to improve pharmacovigilance and, for the purposes of safe use, to clearly differentiate among biological products that have not been determined to be interchangeable.”
As a result, FDA proposes designating a proper name for all biological products, including reference biological products and biosimilar products. The proper name will include: (1) a core name; and (2) a designated suffix. According to FDA, application of this naming convention for all biological products is intended to: (1) encourage routine use of designated suffixes in ordering, prescribing, dispensing, and recordkeeping practices; and (2) avoid inaccurate perceptions of the safety and effectiveness of biological products based on their licensure pathway. FDA intends to apply this naming convention to both newly licensed and previously licensed biological products (for previously licensed biological products, FDA is considering the most effective regulatory approach for implementing this naming convention and intends to provide more information in the future).
Proposed Framework for Designating the Proper Name of a Biological Product
The guidance provides a framework for designating a proper name of a biological product. Specifically, the core name will be the name adopted by the USAN Council for a drug when it becomes available (such as filgrastim, epoetin alfa, etc). The designated suffix will comprise four lowercase letters that will be added to the core name of each product and will be attached with a hyphen. Applicants will be required to conduct their own due diligence and propose a suffix for their product (sponsors of full BLAs should propose a suffix during the IND phase and biosimilar applicants, at the time of licensure). A proposed suffix should be: (1) four lowercase letters; (2) unique; and (3) devoid of any meaning. FDA cautions that a proposed suffix should not: (1) be promotional (namely, make any representations regarding safety or efficacy); (2) include abbreviations commonly used in clinical practice that might be misinterpreted; (3) contain or suggest any drug substance name or core name designated by the USAN Council; (4) look similar to or be mistaken for the name of a currently marketed product; and (5) be too similar to any other product’s suffix designation.
According to FDA, the use of a shared core name will indicate a relationship among products. FDA felt that with the identifier being placed as a suffix, rather than a prefix, the biological products with the same core name will be grouped together in electronic databases to help healthcare providers identify these products. The guidance provides the following examples of products having shared core names:
replicamab-cznm
replicamab-hixf
2. putonastim alfa–jnzt
putonastim alfa-kngx
According to the guidance, the designated suffix will be different for each product, except for interchangeable products. The guidance states that FDA is considering two alternative approaches for the naming of interchangeable products: (1) a unique suffix for interchangeable products; (2) the same core name and suffix as the reference product. FDA is requesting comments on these alternative approaches for the name of interchangeable products.
Finally, the guidance does not apply to biological products for which a proper name is provided in the regulations (such as in 21 CFR part 640) or to certain categories of biological products for which there are well-established, robust identification and tracking systems to ensure safe dispensing practices and optimal pharmacovigilance (ISBT 128 for cord blood products).
