NL - Aventis v Apothecon and Ratiopharm / fexofenadine: selection for group of patients

Aventis Inc v. Apothecon B.V., Ratiopharm B.V. and Ratiopharm Nederland B.V., Appeal, Court of Appeal The Hague, The Netherlands, 16 March 2010, Case No. 105.007.817/01, with thanks to Mark van Gardingen and Peter Burgers, Brinkhof

Aventis asked for a preliminary injunction based on alleged infringement by the generic companies Apothecon and Ratiopharm -by marketing fexofenadine products as anti-histaminics- of its European patent for the 'Use of terfenadine derivates as antihistaminics in a hepatically impaired patient'.

Like the judge in first instance preliminary injunction proceedings, the Court of Appeal holds that Aventis is not entitled to a preliminary injunction because there is a serious chance of nullification of the patent in a case on the merits. The Court of Appeal finds the patent is not new (the anti-histaminic effect of fexofenadine was already known, and the group of patients to which the claims are directed does not qualify as a valid selection), and that the patent lacks inventive step.

Read the decision (in Dutch) here.