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Today the judges of Sø & Handelsretten gave their verdict in the long lasting case of Phadia vs Bioporto.
The case has been hanging like a dead albatros around BioPorto’s neck (the ancient mariner), to some extent prohibiting BioPorto from entering distribution Agreements with major (global) distributors.
Thankfully this is now a closed Chapter. BioPorto won the case.
The case (started in 2006) was litigated by Plesner on behalf of Phadia. One can’t help wondering WHY Phadia uses one of Denmarks most prestigiuos (and expensive) lawyers in defending a Patent that they have NEVER used – and a Patent that is expiring in 2015. Your Guess is probably as good as mine – but I would not be the least bit surprised if Abbott picks up the tab on this one…. Conspiracy you might say – well – in my book all the fingers point in one direction -…
Phadia can not uphold the claims 1–2 in their now practically void patent in Denmark.… and they can not stop the sale of the NGAL test or related products
With the verdict Phadia’s patent cannot prohibit BioPorto (who now have unobstructed access)from marketing the NGALtest… presumably because; if an underlying patent is obtained, the holder of the “umbrella” patent is excluded from exploiting the holder’s rights within the specific area of the underlying patent; and as you obviously know BioPorto holds the license for measurements (identification of AKI) from 250 ng/ml. With todays invalidity verdict – the NGAL test can also be used (but not patented) for use under 250 ng/ml.
The implications if BioPorto had lost the right to market the NGALtest would also have been unthinkable – and in direct violation of the right to gain access even if the patent had been upheld
for those inclined to study overall patent-tendencies
the last remaining obstacle is now gone – lets see some Distribution Agreements
The verdict can be appealed (and probably will be by Abboott – ooopps – I mean Phadia) however – considering the time the first round took – six years – I doubt whether a secondary round will be completed before the expiration of Phadia’s patent i 2015
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