Teva and Sun consider Altana’s Patent No. 4,758,579 invalid. The patent relates to pantoprazole, the active ingredient of the anti-ulcer drug Protonix®.
Israel’s Teva and Sun filed for permission to begin making generic versions of the drug, and Altana then filed an infringement action. Now the generics have won again, as Altana have lost their appeal following the New Jersey district court denying Altana’s motion for a preliminary injunction.
The lower court rejected the request for preliminary relief since it found that the patentee had failed to prove a likelihood of success on the merits and also had failed to show irreparable harm.
On appeal, the Federal Circuit affirmed Denial of Preliminary Injunction: “the law cited by the district court highlights this court’s deference to a district court’s determination whether a movant has sufficiently shown irreparable harm.”
Essentially, Teva has a case that the patent may be invalid due to obviousness, and can pay the damages if they lose.
We note that the Court ruling highlights that generic manufacturers do public service by producing cheap drugs where patent protection is not appropriate in cases where there is no invention.
Altana Pharma & Wyeth v. Teva (Fed. Cir. 2009).
