Neurim v Generics UK Limited (t/a Mylan) [2020] EWHC 1362 (Pat)
Neurim Pharmaceuticals (1991) Limited is the registered proprietor of EP(UK) 1,441,702 B1 (the Patent). Flynn Pharma Limited is registered as an exclusive licensee. The Patent claims prolonged release pharmaceutical formulations concerning the active ingredient melatonin to improve the restorative quality of sleep in a patient suffering from primary insomnia characterised by non-restorative sleep. Flynn distributes a pharmaceutical formulation claimed by the Patent under the brand name Circadin. Mylan propose imminently to release a “generic” rival to Circadin.
Neurim and Flynn sought a preliminary injunction to prevent Mylan’s launch. The application was heard by Marcus Smith J on 3 June 2020 remotely by video link. The Judge refused to order the injunction, deciding that damages caused by a wrongful failure to grant it would be an adequate remedy for Neurim and Flynn under Stage 2 of the American Cyanamid test. The Judge held that it was unnecessary for him to consider Stage 4 of that test (the Balance of Convenience) but would have invited further submissions (were he to have been minded to grant an interim injunction) in light of the request from the Secretary of State for Health (writing on behalf of the National Health Service) that an additional cross-undertaking be provided.
Mark Vanhegan QC and Adam Gamsa appeared for Mylan