In Janssen Pharmaceutica N.V. against Greek pharmaceutical companies (Decision no. 2111/2017, June 22, 2017) the Athens Court of First Instance confirmed the validity of Janssen’s galantamine oral solution patent and granted a high amount of compensation
Janssen Pharmaceutica N.V. (Janssen) is owner of the European patent no. EP1237539 which protects an oral solution containing galantamine and a specific range of a sweetening agent, intended for the treatment of patients suffering from Alzheimer’s disease. Greek pharmaceutical companies, all belonging to the same Group, distributed oral solution drugs in the Greek market, containing galantamine and a sweetening agent, as covered by the patent of Janssen. One of the pharmaceutical companies was owner of the Greek patent no. 1006323 for an oral solution containing galantamine and fructose, also intended for the treatment of Alzheimer’s disease.
Janssen filed an action against the pharmaceutical companies, arguing that the patent EP1237539 is infringed and that compensation
s has to be granted for the years during which the drug was distributed into the market. Furthermore, Janssen filed a nullity action against the Greek patent no. 1006323 of the pharmaceutical company. The pharmaceutical company thereafter also filed a nullity action against the patent of Janssen.
The Court of Athens has now issued a decision with regard to these pending actions. The Court decided that all claims of the patent EP1237539 of Janssen are valid and the related nullity action of the Greek company was rejected. The Court held that the use of an oral solution containing galantamine and a specific range of a sweetening agent was new and inventive when EP1237539 was filed, as it was not obvious to the skilled person in view of the state of the art. EP0236684, the closest prior art document, does not teach the use of an oral solution or a sweetening agent with regard to a galantamine drug. The prior art would not have prompted the skilled person to such an oral solution.
In contrast thereto, the Court declared the Greek patent no. 1006323 to be invalid, due to lack of novelty and inventive step. The Judges argued that the patent of the pharmaceutical company is almost identical to that of Janssen. It is obvious for a skilled person that the use of fructose is covered by the prior patent of Janssen, as fructose falls within the meaning of a sweetening agent. The Court accepted the nullity action of Janssen.
The Court therefore entirely followed the technical Court Expert Opinions, which were issued in this case.
The Court also granted a high amount of compensation
s, confirming the damage calculation of Janssen. Janssen had obtained information on the profit of the pharmaceutical companies and on the amount of oral solution drugs which were distributed in the Greek market. This information allowed Janssen to provide a specific calculation of the infringers’ profit. The Court deemed this calculation to be sufficient and stressed that the pharmaceutical companies did not provide different profit data.
Finally, the Court also awarded moral damages, however, it reduced the amount that Janssen had asked for.
This is one of the first patent infringement cases in the Greek pharmaceutical sector, in which a high amount of compensation
s was granted. Until now, it was very difficult to obtain compensation s in patent infringement cases, as the Plaintiff was usually unable to calculate the compensation s sufficiently. Therefore, this decision offers a guideline on how to provide a compensation calculation, which may be accepted by the Courts.
Decision no. 2111/2017 is a First Instance Decision, hence the case is still open to appeal.