Saturday, February 17, 2007

Discretion in permanent injunctions at issue in Insmed case

The case of Tercica v. Insmed offers an interesting test of the discretion given to district courts in granting (or not granting) permanent injunctions in the post-eBay world.

The New York Times reports: The manufacturer of Iplex, a company called Insmed, has been found to infringe patents licensed by Tercica, the maker of a rival drug. Tercica is now trying to get a federal judge to ban sales of Iplex. Although Tercica’s drug will be available, it requires two injections a day instead of one. And some doctors say it may be less safe. Insmed has submitted to the court letters from more than 20 doctors from around the world urging that Iplex continue to be made available. The letters say Iplex might be useful in treating not only growth deficiency, but also Lou Gehrig’s disease, burns, eye diseases, adult muscular dystrophy and the side effects of H.I.V. medications.

The Times also noted: Patent lawyers said it would be highly unusual for a drug to be taken off the market for patent infringement because judges, in considering any sort of injunction request, must consider the public interest, not just those of the parties involved.

But the Times also noted: Genentech [the patentee and licensor to Tercica], as was its right, refused to license the patent rights to Insmed over a period of 10 years. But they say Insmed continued to develop its drug in a calculated gamble that even if the company were found to have infringed on the patents, it would have to pay only monetary damages.

The Times story ended with the words: Dr. Desrosiers, who has been an adviser to Tercica but favors Insmed’s drug, said he wished the dispute would go away. "I wish they wouldn’t eat each other, whoever wins," he said.

From an IPBiz post in December 2006:

Separately, a jury in federal court in ND Cal (Oakland) awarded San Francisco-based Genentech and Brisbane, Calif.-based Tercica $7.5 million in damages and a percentage of future sales of the treatment against Insmed's Iplex. Tercica has a product Increlex, a growth drug used to treat about 6,000 short children. (from Bloomberg News)


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