Friday, February 17, 2017

GENENTECH: AMGEN NOT DISCLOSING MANUFACTURING PROCESS IN AVASTIN BIOSIMILAR PATENT DANCE

           On February 15, 2017, Genentech filed suit against Amgen accusing Amgen of failing to adequately disclose its manufacturing process to Genentech despite agreeing to engage in the biosimilar "patent dance.” After the FDA accepted Amgen’s aBLA for a biosimilar version of Avastin®, Amgen gave notice of the acceptance to Genentech within the 20 day statutory period.  Amgen further produced only its aBLA, and announced that doing so “satisfie[d] Amgen’s production obligations under 42 U.S.C. § 262(l)(2)(A),” and took the position that the sixty-day countdown for Genentech to prepare its list of patents under § 262(l)(3)(A) had begun to run.  In the Complaint, Genentech states that it is unable to prepare a list of patents that Amgen infringes without additional information from Amgen, particularly “information that describes the process or processes used to manufacture the biological product that is the subject of such application.” 42 U.S.C. §262(l)(2)(A).  Genentech seeks immediate relief from the court since “if Genentech fails to list a patent, it could be barred permanently from asserting that patent against Amgen’s biosimilar Avastin®.”

            Genentech further states that it identified for Amgen the following categories of information relevant to antibody manufacturing patents in Genentech’s portfolio, and provided Amgen with exemplary Genentech patents that were potentially implicated:

• Characterization of the complete genome and phenotype of host cells used to manufacture bevacizumab;
• Composition of all cell culture media, including the amounts of each component of the media;
• For each attempt by Amgen to culture cells transformed with DNA encoding bevacizumab, all information concerning the extent and nature of glycosylation of bevacizumab (for example, relative percentages of different glycoforms of bevacizumab);
• Parameters monitored during any attempt by Amgen to culture cells transformed with DNA encoding bevacizumab;
• All information concerning any sparging of the pre-harvest or harvested culture fluid;
• Protein A chromatography parameters, including the compositions and properties of all buffers used in the process;
• From each attempt by Amgen to purify bevacizumab using Protein A chromatography, information concerning the temperature of the material loaded onto the column and the temperature of the column;
• Cation exchange chromatography parameters, including the compositions and properties of all buffers used in the process, the amount of antibody loaded onto the cation exchange resin, the volume of the cation exchange resin, and column regeneration procedures;
• Anion exchange chromatography parameters, including the compositions and properties of all buffers used in the process;
• From each attempt by Amgen to purify bevacizumab, measurements of the amount of bevacizumab monomer and amounts of bevacizumab dimers and multimers, before and after cation or anion exchange chromatography;
• All parameters concerning any viral inactivation steps or protocols, including all information concerning the effects of such processes on the stability of bevacizumab;
• All information concerning the ABP 215 formulation and its development, including any experiments performed with excipients other than those found in ABP 215;
• All information concerning the filling of vials to manufacture the ABP 215 drug product; and
• All information concerning the use of tangential flow filtration, including the processes used to adjust buffer concentrations.

Genentech seeks information from Amgen regarding the above manufacturing processes before it provides Amgen a list of patents that Amgen possibly infringes. 

            According to Genentech, the issue in this case is different from  Amgen Inc. v. Sandoz Inc., 794 F.3d 1347 (Fed. Cir. 2015), cert. granted, ___ U.S. ___, 2017 WL 125662 (Jan. 13, 2017), where the Supreme Court will decide whether a biosimilar applicant can opt out of the BPCIA information exchanges altogether, and if so what are the consequences.





[1] Case No. 1:17-cv-00165, D. Delaware.

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