Pfizer Limited v Amgen Research (Munich) GmbH & Anor

MR. JUSTICE MEADE:

1. This is essentially an application to list the trial in a complicated three-action dispute involving, as between the patentee and one of the other parties, two patents and as against the other two parties, one patent (there are other subsidiary applications which are agreed or of no separate consequence). The application is to list the trial in advance of the CMC and, therefore, takes place against the background of the decision of Mellor J in Nokia v OnePlus [2021] EWHC 2746 (Pat) where he said this at paragraph 4: “It may be helpful to emphasise that these parties, like all litigants, have the following options in terms of obtaining a trial listing. (i) First of all, (a) if the parties are able to agree both the subject-matter of a trial, i.e. which patents are in issue and (b) the listing estimate, including pre-reading, court days and time off for preparing closing submissions, the Patents Court is likely to approve the obtaining of a trial listing even in advance of the full CMC and potentially that can be done on paper, or simply by approaching Listing. (ii) Second, if, for example, there remains a relatively confined dispute over the listing estimate which can be dealt with by the court in a short hearing of, as I have indicated, 30 minutes at 9.30 a.m., the parties can approach the listing officer for a short hearing to determine such short disputes, again prior to the full CMC. In this regard, I adhere to an observation I made in my judgment in Teva v Janssen , to the effect that the Court will give a trial listing provided it has a proper appreciation of the scope of the trial. (iii) Third, if the action for example and by contrast involves a number of patents and disputes over which patents should be considered in which trials and/or in which order, or the dispute is complex in some other way such as the effect of disputed directions on trial length, the trial listings may have to be determined at the CMC.”

2. The current situation falls within the third of the three situations considered by Mellor J, because it is an action involving a number of patents, the dispute is complex and there is some disagreement at least about trial length. In that situation the judge said that the trial listings may have to be determined at the CMC. None the less, this application comes on in advance of the CMC, the earliest of the proceedings (by Pfizer) having begun in June this year and with the CMC expected to take place probably in about November.

3. The parties are, on the one hand, two Amgen companies and on the other hand, Pfizer, Regeneron and Janssen, who each have claimed to revoke the main patent-in-suit and, in the case of Regeneron, an additional but related patent. There is significant disagreement under a number of headings about the trial duration, but for the present purposes, I need not resolve that because I can make my decision, I think, working from the longest estimate currently in play, which is Amgen's estimate of 12 days. The other parties have put in shorter estimates. Perhaps the shorter estimates will turn out to be right and perhaps they will not, but if I make my decision today, erring on the side of caution by using Amgen's estimate, I think matters can be progressed.

4. There have been various proposals put forward over time, but matters have simmered down, as they tend to in advance of hearings, to a proposal by Amgen, retreating from some of its earlier more extreme stances, that the trial can be listed for up to 12 days, at its convenience (it says) after 1st October 2023. That has been responded to by Regeneron and Janssen by saying that they will accept and agree with that, subject to a backstop that the trial must take place in Michaelmas Term of 2023

5. Pfizer has made a more guarded response and says that it will agree, provided that the listing is in October, not from October, and it points out that it will have to give up its counsel of choice if the trial is in October. Against that background, Pfizer maintains its primary position that the trial ought to be in the Trinity term of 2023 or in September 2023 and it draws attention, as one would expect, to the Practice Statement about listing in the Patents Court, which contains the objective that patent actions should be brought to a decision within 12 months of issue.

6. The 12-month goal remains an important objective of the patents court, but it cannot always be achieved; it is certainly harder to achieve in a fully just way when actions are especially heavy and/or (as in this case) when they are multi-party, with not all of the proceedings beginning at the same time: Regeneron and Janssen came. In addition, the start of these proceedings was shortly before the summer break and that can sometimes stretch out the 12-month period. None the less, it is an important objective and even if a case cannot be brought on for decision within 12 months, it must be brought on as swiftly as possible after that.

7. There have been some informal inquiries made by the parties of Listing about when a trial could be brought on, with the length that Amgen estimates, which is to say 12 days, and the parties' understanding is that that may well be possible in October 2023. As it happens, it is also my understanding that that is reasonably likely to be possible but it cannot, at the moment, be guaranteed. One reason for that is that a number of cases in the list in the Patent Court at the moment, whilst of high value and of high complexity, are not technical trials, but FRAND-type trials. Still, I have some optimism, sufficient to inform my decision today, that a trial in October 2023 will be possible and, if it is possible in that month, then I have a similar degree of optimism that it can start at the beginning of October 2023.

8. That is what I am going to order; that the trial should take place in Michaelmas Term of 2023 and as early as possible in that Term. I will have to go and discuss with Listing exactly how that can be implemented and if it turns out that my optimism is misplaced, it may be necessary to reconstitute this hearing, although I think and hope that that can be avoided.

9. In deference to the arguments that have been presented, I will say a few words about the procedure for applications like this and about the possibility of having trials in September.

10. A number of patent trials have been listed for September in the recent past and indeed there is more than one listed for this month. It requires some concrete reason for doing it, but it is not an utterly exceptional course. However, careful scrutiny has to be applied to determine those cases that are suitable for September. Whilst in the right case, and against the right commercial background, a trial of this weight might be directed to be heard in September, I accept the submissions on behalf of Amgen, Regeneron and Janssen, who disfavour a September trial, that a trial of this length and weight, even if it is heard in the second half of September, inevitably requires preparations, and by that I mean the intense preparations that immediately precede a trial, to take place right through the holiday season. Whilst the vacation plans of the legal representatives is only a relatively modest factor, there are other participants in this sort of proceeding, and in particular expert witnesses, who cannot simply be made available throughout the holiday season with confidence, even with notice this far in advance. Without in any way setting down a general rule, I think it is a fair point to make that a genuinely long and extremely complex multi-handed, multi-expert action is not a very good fit for September and that is one reason for preferring October, as I do.

11. I would also say this in relation to what I have heard today: as it has so happened, I have been able to work adequately from the maximum trial estimate of 12 days, as I have indicated already, but if things had taken a different turn, it might have been important for me to form a clearer and better view of the real likely duration of the trial. For these applications to list a trial before the CMC, I think it is extremely important that the parties provide each other and the court with the greatest possible clarity about what is likely to be in the trial. Of course, greater clarity will be available at the CMC, but that is not a reason for the best possible information not to be given to the court at an application of this kind.

12. In the present case, without meaning any disrespect or implying anything improper, it does seem to me that parties have played their cards much closer to their chests than I would have ideally liked, and there is less clarity than I would have ideally wanted about a number of important matters, in particular the scope and nature of experiments, the ability of the parties seeking revocation to share experts and counsel, and the position in relation to infringement generally. Submissions were made to me on a number of occasions in the course of this hearing that no greater clarity will have emerged by the CMC. In my view, that submission does not really meet the point, which is that when one is seeking to list a trial before the CMC, it generally is important, even if it was not critical today, to know what will be in issue and, therefore, the likely trial length.

13. As a matter of guidance for the future, I will say that parties seeking to get, or opposing, or debating, a listing in advance of the CMC should come to the hearing with as much detail as they can give the court and this burden falls, in my view, on all the parties, but especially on a party who seeks an early trial listing.

14. With that in mind, I give a clear indication, although I make no formal order, that when this matter comes back for the CMC, I will expect the greatest possible clarity that can be given on the matters that I have mentioned and I hope very much that the parties seeking revocation of the patent are able to indicate concretely by then, especially since the trial time will be known, that they are or are not able to agree to share experts and to share counsel. If the information is not yet available, then so be it, but in my view it is extremely important that that is given to the court so far as it can be.

15. In summary, my order is that these proceedings will be tried in the Michaelmas Term of 2023, as early as possible, and I will discuss with Listing exactly what that means. - - - - - - - - - - -