Brenzys lists on the Australian PBS and Pfizer denied discovery of documents to establish grounds for patent infringement
Written By
Partner
Australia
I am a partner in our Intellectual Property Group, based in Sydney. My experience spans the breadth and depth of IP issues, but my specialty is complex IP litigation and disputes including contentious patent, trade mark, copyright, and confidential information and consumer protection/passing-off matters.
As of 1 April 2017, Samsung Bioepis' Brenzys, a biosimilar to Pfizer's Enbrel (active ingredient etanercept), will join the very short list of "a-flagged" biosimilars listed on the Australian Government's Pharmaceutical Benefits Scheme (PBS). Pharmacists can substitute a prescribed biologic with an "a-flagged" biosimilar at the pharmacy level (ie. at dispensing).
The listing of Brenzys on the PBS coincided with the decision of the Federal Court of Australia to refuse an application by Pfizer for discovery before action of documents pertaining to the process of manufacture of Brenzys by Samsung Bioepis.
The launch and PBS listing of Brenzys, without an interlocutory injunction application from Pfizer, and the failed application for discovery shows that the pathway to restraining the launch of a biosimilar may be more difficult than in the small molecule market.
In the landscape of the Australian government's express commitment to increasing awareness of biosimilars(in which it has promised an investment of AUD20 million over 3 years), Brenzys' unimpeded PBS listing is an encouraging development in the biologic/biosimilar landscape.
Federal Court action - background
Pfizer sought discovery in the Federal Court of Australia of confidential documents that Samsung Bioepis had lodged with the Therapeutic Goods Administration in support of its PBS application
According to Pfizer, it needed these documents to decide whether to bring proceedings against Samsung Bioepis for patent infringement under 3 method of manufacture patents in relation to Enbrel.
Pfizer also sought an order that if Samsung Bioepis did not have the requested documents in its possession custody or power, that it take reasonable steps to obtain them for disclosure.
Decision
The main issue before the Court was whether Pfizer had the required subjective and objective reasonable belief that it might have a cause of action as required by the Federal Court Rules.
Pfizer relied on six contentions in its submissions and argued that when considered cumulatively, they would satisfy the "reasonable belief" threshold.
Pfizer’s principal argument was that because Brenzys is a biosimilar of Enbrel it must have been made using the patented methods, given in particular, the fact that characteristics of biologics are very sensitive to the process by which they are created. In support of its argument, Pfizer relied on evidence that the glycolisation profiles of Brenzys and Enbrel are very similar.
Burley J concluded, however, that although the end products are biosimilar this does not necessary mean that the method is similar.
Similarly, Pfizer contended that his Honour should…
