By their appeal, Teva Pharma Europe BV and Teva Pharmaceuticals Europe BV, companies governed by Netherlands law (together, ‘the Teva companies’), seek to have set aside the judgment of the General Court of the European Union of 22 January 2015 in Case T‑140/12 Teva Pharma and Teva Pharmaceuticals Europe v EMA (EU:T:2015:41) (‘the judgment under appeal’), by which that court dismissed their action for annulment of the decision of the European Medicines Agency (EMA) of 24 January 2012 rejecting their application to place on the market the generic version of the orphan medicinal product imatinib mesylate, in so far as concerns the therapeutic indications for the treatment of chronic myeloid leukaemia (‘the contested decision’).
Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products (OJ 2000 L 18, p. 1), as amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009 (OJ 2009 L 188, p. 14), lays down procedures for the designation of medicinal products as orphan medicinal products and for the marketing authorisation of such products.
Recital 8 of Regulation No 141/2000 reads as follows:
Article 3(1) of Regulation No 141/2000 is worded as follows:
Under the procedure set out in Article 5 of Regulation No 141/2000, a medicinal product designated as an orphan medicinal product by the European Commission is entered in the Community Register of Orphan Medicinal Products.
Article 8 of Regulation No 141/2000 states as follows:
Article 3(2) of Commission Regulation (EC) No 847/2000 of 27 April 2000 laying down the provisions for implementation of the criteria for designation of a medicinal product as an orphan medicinal product and definitions of the concepts ‘similar medicinal product’ and ‘clinical superiority’ (OJ 2000 L 103, p. 5) provides as follows:
It is apparent from paragraphs 10 to 20 of the judgment under appeal that by decision of 14 February 2001 the Commission designated imatinib mesylate (‘imatinib’) an orphan medicinal product for the treatment of chronic myeloid leukaemia (‘CML’) and entered that product in the Community Register of Orphan Medicinal Products in accordance with Article 5(9) of Regulation No 141/2000.
On 7 November 2001, the Commission granted Novartis a marketing authorisation for imatinib under the commercial name Glivec for the treatment of adult patients with CML in chronic phase after failure of interferon-alpha therapy, or in accelerated phase or blast crisis. Subsequently, the Commission extended the terms of that marketing authorisation to cover other orphan conditions. Pursuant to Article 8 of Regulation No 141/2000, the period of exclusivity enjoyed by Glivec expired on 12 November 2011.
On 22 May 2006, the Commission designated and registered as an orphan medicinal product nilotimib, a medicinal product for the treatment of CML, which was sold under the commercial name Tasigna and developed by the holder of the marketing authorisation for Glivec. In the course of the marketing authorisation procedure for Tasigna, that holder indicated to the EMA that it consented to authorisation being granted for the marketing of that similar medicinal product for the same therapeutic indications as those covered by the marketing authorisation granted for Glivec, in accordance with Article 8(3)(a) of Regulation No 141/2000.
On 19 November 20007, the Commission adopted a decision authorising the marketing of Tasigna for the treatment of adult patients with CML in chronic phase and accelerated phase, with resistance or intolerance to prior treatment involving Glivec. That decision was mentioned in the Official Journal of the European Union of 28 December 2007 (OJ 2007 C 316, p. 48).
On 20 December 2010, the Commission extended the terms of that marketing authorisation to cover the treatment of adult patients with newly diagnosed CML in chronic phase. The relevant decision was mentioned in the Official Journal of the European Union of 25 February 2011 (OJ 2011 C 61, p. 1).
On 5 January 2012, Teva Pharmaceuticals Europe BV applied on behalf of Teva Pharma BV for authorisation to place on the market a generic version of Glivec. That application referred, inter alia, to certain CML therapeutic indications covered by the marketing authorisation granted for Tasigna.
By the contested decision, the EMA refused to grant that application, in so far as it covered the CML therapeutic indications for which Tasigna enjoyed marketing authorisation, on the ground that those therapeutic indications still enjoyed market exclusivity protection under Article 8(1) of Regulation No 141/2000.
On 28 March 2012, the Teva companies brought an action for the annulment of the contested decision.
By order of the President of the First Chamber of the General Court of 6 September 2012, the Commission was granted leave to intervene in support of the EMA.
By the judgment under appeal, the General Court dismissed the Teva companies’ action and ordered them to pay the costs.
The Teva companies claim that the Court should set aside the judgment under appeal, annul the contested decision and order the EMA to pay the costs.
The EMA and the Commission contend that the Court should dismiss the appeal and order the Teva companies to pay the costs.
Teva takes issue with the General Court’s interpretation of Regulation No 141/2000 in paragraph 78 of the judgment under appeal and does not accept that a marketing authorisation granted pursuant to Article 8(3) of that regulation can enjoy a period of market exclusivity under Article 8(1) of the regulation. That interpretation fails to take account of the aim of Article 8(3) of the regulation, which is to protect a similar medicinal product notwithstanding the market exclusivity provided for in Article 8(1). As it constitutes a derogation, Article 8(3) should be construed narrowly; it cannot be interpreted as conferring the right to market exclusivity provided for in Article 8(1).
Moreover, the General Court’s interpretation is contrary to the scheme of Article 8 of Regulation No 141/2000. Article 8(1) is intended to provide a reward for the first orphan medicinal product authorised for a particular indication, that reward taking the form of market exclusivity. The notion of exclusivity implies a status that may be enjoyed by only one product. If the legislature had intended to confer market exclusivity on several medicinal products at the same time, it would have so stated in an express provision, as is apparent from the Explanatory Memorandum to the Proposal for a European Parliament and Council Regulation (EC) on orphan medicinal products submitted by the Commission on 28 July 1998 (OJ 1998 C 276, p. 7).
The Teva companies maintain that the General Court’s interpretation is, in certain respects, conflicting. In particular, Article 8(3)(a) of Regulation No 141/2000 expressly provides that a medicinal product may be authorised with the consent of the holder of the marketing authorisation for the original orphan medicinal product. They observe, however, that if the Commission has already granted to a third party a marketing authorisation for a second similar orphan medicinal product which independently enjoys a period of market exclusivity, the provisions of Article 8(1) and 8(3) will be in direct conflict.
The holder of the marketing authorisation for the original orphan medicinal product would be denied the possibility of consenting to the placing on the market of the product in question, whereas the consent of the holder of the authorisation for the second medicinal product would be required. Where the marketing authorisation holders are independent entities, it is unlikely in practice that such consent would be forthcoming. The Teva companies submit that the holder of the marketing authorisation for the second medicinal product would also be denied the possibility of consenting to a subsequent marketing authorisation application for a similar medicinal product, as that application would then be in conflict with the market exclusivity enjoyed by the original product.
The fact that Article 8 gives no indication as to how those conflicts could be resolved shows that the legislature did not envisage such situations.
The EMA and the Commission contend that Article 8(1) of Regulation No 141/2000 is applicable to any medicinal product designated an orphan product in accordance with the criteria laid down in Article 3 of the regulation.
It should be noted that in paragraph 78 of the judgment under appeal the General Court found that ‘the marketing authorisation granted for an orphan medicinal product in respect of the same therapeutic indications as those for which the original orphan product was authorised, including on one of the grounds laid down in Article 8(3) of Regulation No 141/2000, automatically confers on that product the ten-year period of market exclusivity provided for in Article 8(1) of that regulation’.
It should be recalled in that connection that, in order to provide the pharmaceutical industry with an incentive to sponsor the research, development and marketing of orphan medicinal products, Regulation No 141/2000 offers the sponsors of such products the prospect of obtaining market exclusivity for a certain number of years. In line with that objective, referred to in recital 8 of the regulation, Article 8(1) thereof provides that ‘where a marketing authorisation in respect of an orphan medicinal product is granted … the [European Union] and the Member States shall not, for a period of 10 years, accept another application for a marketing authorisation, or grant a marketing authorisation or accept an application to extend an existing marketing authorisation, for the same therapeutic indication, in respect of a similar medicinal product’.
As is apparent from recital 8 of Regulation No 141/2000, that regulation nevertheless seeks to circumscribe that period of exclusivity in order not to prejudice existing intellectual property rights and, in the interests of patients, not to prevent the marketing of a medicinal product similar to the orphan product which could be of significant benefit to those affected by the condition in question.
Accordingly, Article 8(3) of Regulation No 141/2000 provides that it is possible to derogate from the ten-year exclusivity period and grant marketing authorisation for a similar medicinal product in respect of the same therapeutic indication and to do so in three cases, namely (i) where the holder of the marketing authorisation for the original orphan product consents or (ii) is unable to supply sufficient quantities of the medicinal product and (iii) where the second applicant can establish that his product, ‘although similar to the orphan medicinal product already authorised, is safer, more effective or otherwise clinically superior’.
None of the provisions referred to above expressly provides that a marketing authorisation granted on the basis of Article 8(3) of Regulation No 141/2000 is to be denied the benefit of the ten-year period of exclusivity provided for in Article 8(1) of the regulation. The General Court was therefore entitled to state, in paragraph 73 of the judgment under appeal, that there is nothing in that provision concerning whether the authorisation referred to in Article 8(3) of the regulation confers market exclusivity on a similar medicinal product and, in paragraph 78 of the judgment, that there is nothing in the regulation to suggest that application of Article 8(3) precludes the application of Article 8(1).
It is also apparent from the factors referred to above that although the market exclusivity provided in Article 8(1) of Regulation No 141/2000 is reserved for orphan medicinal products alone, the derogations exhaustively set out in Article 8(3) of the regulation relate to any similar medicinal product within the meaning of Regulation No 847/2000, irrespective of whether or not the product is an orphan product. As the General Court was correct to observe in paragraph 80 of the judgment under appeal, Regulation No 141/2000 does not contain any provision under which it is possible not to apply the ten-year period of market exclusivity to orphan medicinal products that have been granted marketing authorisation for certain therapeutic indications, with the exception of the situations set out in Article 8(2) of the regulation. As a consequence, where a similar medicinal product that has been granted marketing authorisation under Article 8(3) of Regulation No 141/2000 is an orphan product, it enjoys the market exclusivity provided in Article 8(1) of the regulation.
Contrary to the contentions of the Teva companies, that interpretation is neither illogical nor at odds with the purpose or scheme of Article 8 of Regulation No 141/2000. Paragraphs 1 and 3 of Article 8 of the regulation, although complementary, are different in scope and purpose. The fact that an orphan medicinal product enjoys the period of market exclusivity provided in Article 8(1) of Regulation No 141/2000 does not preclude a second, similar product which has been authorised in accordance with Article 8(3) of the regulation being granted, in turn, market exclusivity, as long as it also fulfils the requirements set out in Article 3(1) of the regulation for designation as an orphan medicinal product.
The General Court was therefore correct to state, in paragraph 80 of the judgment under appeal, that it is precisely in order to ensure attainment of the objective pursued by Regulation No 141/2000 - namely to encourage investment in the research, development and marketing of orphan medicinal products - that market exclusivity must be granted in all cases in which an orphan product has been given marketing authorisation.
It follows from all the above considerations that the first part of the single ground of appeal is unfounded and must be rejected.
The Teva companies dispute the General Court’s finding in paragraph 74 of the judgment under appeal that ‘if [the similar product] is an orphan medicinal product, the ten-year period of market exclusivity with which it is endowed by virtue of Article 8(1) of the regulation cannot be curtailed as a result of the fact that there exists an orphan medicinal product which has received marketing authorisation for the same therapeutic indications and which benefits from market exclusivity for those indications’ and that ‘similarly, the market exclusivity attaching to that product will not be extended as a result of the fact that marketing authorisation has been granted for the second medicinal product’.
The Teva companies consider that interpretation to be clearly at odds with the objective of Article 8 of Regulation No 141/2000 as it would lead, in practice, to the prolongation of the market exclusivity period beyond its ten-year term. Accordingly, they claim that if the marketing authorisation had been granted for Tasigna on 11 November 2011, that interpretation would have the effect of conferring market exclusivity until 11 November 2021, that is, for a period of 20 years, during which no generic version could be placed on the market. Such an extension of the market exclusivity period is particularly unjustified, given that it would not have been possible if Tasigna had represented a development that was sufficiently novel not be regarded as a similar product within the meaning of Regulation No 847/2000. Paradoxically, the effect of the contested decision would therefore be that a generic version of Glivec could not enjoy market exclusivity after the grant to Novartis of a marketing authorisation for a different product, whereas that company would have the benefit of market exclusivity for a similar medicinal product. That analysis would create ‘perverse’ incentives for undertakings to develop a series of slightly different, but nevertheless similar, orphan products, thereby benefiting from a prolongation of the period of market exclusivity, which is normally limited to 10 years.
The EMA and the Commission submit that there is no formal extension of the market exclusivity period of the first orphan medicinal product. The authorisation of any subsequent similar orphan product would have no impact on the decision to remove the first product from the Register of Orphan Medicinal Products at the end of the ten-year exclusivity period.
As observed in paragraph 31 above, where a similar medicinal product that has been granted marketing authorisation under Article 8(3) of Regulation No 141/2000 is an orphan medicinal product, it enjoys the market exclusivity provided in Article 8(1) of the regulation. In line with the objective pursued by Regulation No 141/2000, which is to provide the pharmaceutical industry with an incentive to sponsor the research, development and marketing of orphan medicinal products by granting them a period of market exclusivity, Article 8(1) of the regulation does not provide for any exception to the duration of that period or for any modification of the period. The General Court was therefore entitled to find, in paragraph 70 of the judgment under appeal, that ‘no provision [is] made for any extension of that period, which may be reduced, under Article 8(2) of Regulation No 141/2000, only in situations in which it is established that the medicinal product in question no longer meets the requirements laid down in Article 3(1) of the regulation’.
The General Court did not therefore err in law in finding, in paragraph 74 of the judgment under appeal, that the ten-year period of market exclusivity with which an orphan medicinal product is endowed by virtue of Article 8(1) of Regulation No 141/2000 ‘cannot be curtailed as a result of the fact that there exists an orphan medicinal product which has received marketing authorisation for the same therapeutic indications and which benefits from market exclusivity for those indications’ and that ‘similarly, the market exclusivity attaching to that product will not be extended as a result of the fact that marketing authorisation has been granted for the [similar] medicinal product’.
It follows from all the foregoing considerations that the second part of the single ground of appeal is unfounded and must be rejected.
The Teva companies take issue with the General Court on the ground that it distorted the meaning of its alternative case and failed to address that case. According to paragraph 79 of the judgment under appeal, those companies had argued that ‘if a second, similar orphan medicinal product which has been granted marketing authorisation for the same therapeutic indications as those for which the marketing of the original orphan product was authorised may benefit from a ten-year period of market exclusivity that is independent of that enjoyed by the original orphan product, that period of exclusivity could operate only to prevent marketing authorisation being granted for products that are similar to the second medicinal product’.
The Teva companies contend that that description is not an accurate reflection of paragraphs 42 to 44 of the application which they submitted to the General Court or of paragraph 38 of their reply, in which they submitted that the market exclusivity granted to a second medicinal product should prevent only the authorisation of products that are similar to the second product, while not being similar to the first orphan product. Even if Article 8 of Regulation No 141/2000 may be construed as providing, in principle, an independent period of market exclusivity for the second product, there should be an exception to that market exclusivity so as to permit the authorisation of a generic version of the first product, once the period of exclusivity for that first product has expired.
The EMA questions whether the third part of the single ground of appeal is admissible, in that it relates to an appraisal of the facts. The EMA maintains, like the Commission, that this part of the ground of appeal is in any event unfounded as the General Court did not distort the Teva companies’ written pleadings.
It is apparent from paragraph 42 of the judgment under appeal that the Teva companies maintain that the market exclusivity enjoyed by a second orphan medicinal product does not preclude marketing authorisation being granted for a product that is similar to the first orphan product. In paragraph 58 of the judgment under appeal, the General Court stated that the applicants submitted, in the alternative, that even if a similar orphan medicinal product authorised under the derogation in Article 8(3) of Regulation No 141/2000 may benefit from an independent ten-year period of market exclusivity, that second period of exclusivity would preclude only authorisation for the marketing of products that are similar to the second orphan product and that such a period of exclusivity cannot operate to prevent marketing authorisation being granted for medicinal products that are similar to the first authorised orphan product, in particular generic versions of that product, after the expiry of the period of market exclusivity attaching to the first orphan product. In thus setting out the Teva companies’ arguments referred to in paragraph 42 above, the General Court did not distort those arguments.
As those arguments were rejected on the grounds set out in paragraph 79 of the judgment under appeal, the General Court cannot be criticised for failing to rule on the arguments.
It follows that the third part of the single ground of appeal is clearly unfounded. The appeal must therefore be dismissed.
Under Article 138(1) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the EMA has applied for costs against the Teva companies and the Teva companies have been unsuccessful, they must be ordered to bear their own costs and pay the costs incurred by the EMA.
In accordance with Article 140(1) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, the Commission, which intervened in the proceedings, is to be ordered to bear its own costs.