Financial Pitfalls Associated With An Interim Injunction

In AstraZeneca v KRKA, d.d. Novo Mesto and Consilient Health Ltd. ("KRKA"), the Mr Justice Sales of the UK High Court has considered the merits of arguments put forward when trying to recover damages following a cross-undertaking in respect of an interim injunction that was subsequently discharged.

Significantly, in awaiting damages in KRKA the Judge chose to rely on the evidence of medicine managers (experienced pharmacists employed by the National Health Service Primary Care Trusts) rather than that of expert economists when assessing the loss of "first mover" advantage.

Facts of the case

AstraZeneca owns a European (UK) patent that provides protection for Nexium®, which is the brand name for esomeprazole magnesium, a proton pump inhibitor that is used to treat a range of gastric conditions. Nexium® was launched in the UK in 2000 and was the only product of its kind on the market until 2011, during which period it commanded a high price.

In October 2010, AstraZeneca obtained an interim injunction in the UK that prevented KRKA from marketing Emozul®, a generic equivalent of Nexium®, in order to preserve the status quo pending a trial. KRKA claimed that Emozul® did not infringe AstraZeneca's patent.

At the time that AstraZeneca obtained its injunction against KRKA, the validity of AstraZeneca's patent for Nexium® was being challenged in the UK by Ranbaxy, who also sought to market a generic equivalent of Nexium® in the UK. A speedy trial concerning...