As we previously posted, Amgen seeks discovery from AbbVie regarding its “patent dance” exchanges with other adalimumab biosimilar applicants under the BPCIA. Last Friday, AbbVie filed its response, arguing that the BPCIA prohibits disclosure of the information Amgen seeks, which is only marginally relevant since it covers patents not asserted in this case.
AbbVie asserts that the invalidity contentions and responses Amgen seeks are “based on a biosimilar’s confidential information and are intertwined with that information.” It argues that the BPCIA requires that such confidential information be used solely for the purpose of determining “whether a claim of patent infringement reasonably be asserted,” and provides specific penalties for violating this confidentiality provision. Thus, AbbVie argues that it cannot produce these documents without the consent of third-party biosimilar applicants, or it risks violating the BPCIA. AbbVie further argues that requiring production of these documents will create ancillary litigation with third party biosimilar manufacturers, resulting in “wave after wave of complex and time-consuming disputes.”
AbbVie also argues that Amgen’s request should be denied as overbroad, because it “could require production of information concerning literally scores of patents that are not part of this lawsuit.”
A copy of AbbVie’s letter can be found here.