Nelson Quoted on Patent Thicket Appeal that Could Alter Biosimilar Landscape

Partner Kevin Nelson was quoted on a Seventh Circuit appeal that could dramatically alter the patent landscape for biologic drugs and could determine whether AbbVie Inc.’s thicket of more than 130 patents surrounding drug Humira is protected.

Critics of AbbVie’s patent thicket are not targeting a single patent but rather that company’s overall pattern of patent prosecution, calling many patents in the thicket “overlapping and non-inventive.”

Kevin said, “You need to have a good faith basis for every [patent] assertion you make.”

The second determining factor of the case is the court’s ruling on the global licensing deal AbbVie struck with biosimilar competitors that allowed them entry into European markets while delaying competition in the United States. A federal judge previously ruled that the payments were legal under FTC v. Activis, in which the U.S. Supreme Court held that certain deals between brand and generic-drug makers can violate antitrust law.

However, Kevin noted that the federal judge ruling “didn’t give the boundaries of what is and is not anti-competitive.”

“There is a lot of room,” he said. “[This case is about] testing the boundaries of the Actavis case.”

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