Article Patent Law | 01/10/20 | 2 min. | François Pochart
Download the judgment - TGI Paris, 3.3., 11 September 2020, Eli Lilly v. Fresenius, RG 17/10421
The patentee (belonging to the Eli Lilly group) had, during prosecution, amended its claims relating to the use of “antifolates” combined with other compounds to inhibit tumour growth to “pemetrexed” (an antifolate). The EPO examiner raised a 123(2) EPC objection on the term “pemetrexed”, and the claims were granted with the term “pemetrexed disodium” instead of “antifolates” .
On the scope of the patent, the French Court considers that :
On the infringement: Fresenius uses a diacid solution of pemetrexed, not a pemetrexed disodium. However the Court considers there is direct infringement, mostly because, as mentioned above, the claim amendment was not made to differentiate the invention from a prior art, but to answer an A123 argument.
On the compensation, the Court sets a new monetary record of 28 million euros as provisional indemnities: it orders Fresenius to pay
The Eli Lilly requests were of 10 million and 30 million €, respectively.
The decision can be appealed.
 Other articles about the pemetrexed saga in Europe are available, in particular, on https://ipkitten.blogspot.com/ ou http://patentblog.kluweriplaw.com/