Ha Kung Wong Discusses Public Interest and Drug Competition

Public interest and what is in the best public interest can vary from court to court, and in the case of Amgen v Sanofi, it has yet to be determined if public interest will be considered, explained Ha Kung Wong, JD, partner at Fitzpatrick, Cella, Harper and Scinto.

Will the public interest in having competition within drug classes, such as in the ongoing litigation concerning PCSK9 patents, have an impact on the courts’ rulings?
Well, public interest is an interesting question because of lot of that can be subjective from court to court. But historically, competition per se hasn’t had much of an impact on courts’ rulings relating to small molecule drugs and medical devices. So in those situations, where the courts haven’t seen much evidence of physician preference for or greater efficacy of an infringing product, they will generally determine that the public interest actually lies in having a strong patent system and not in having just competing products in a market for the sake of competition.
But, where the courts have seen evidence of physician preference or product superiority they do tend to find that the public interest lies in keeping a superior product on the market. In Amgen v Sanofi, for example, Sanofi is now trying to demonstrate that the clinical trials suggest that its PCSK9 inhibitor is superior. Regardless, it’s yet to be seen if the public interest factor would be dispositive in this situation, and if not, to what extent it will be considered.
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