萬國法律事務所

In the commercial battle for the distribution of the anti-carcinogen Gemcitabine between the American Eli Lilly and Company (Eli Lilly) and the Taiwanese TTY Biopharm Company Limited (TTY Biopharm), the Intellectual Property Court (IP Court) decided of late to revoke the provisional attachment originally granted by the Taoyuan District Court (TDC) against TTY Biopharm. The application by Eli Lilly to the TDC for provisional attachment is therefore rejected. The decision of the IP Court is a success for TTY Biopharm’s appeal, but Eli Lilly may still appeal the decision to the Supreme Court.

Eli Lilly distributes the anti-carcinogen Gemcitabine “Gemzar” (in Chinese 健擇) in Taiwan. TTY Biopharm distributes the Gemcitabine injection “Gemmis” (in Chinese健仕注射劑) imported from the Mainland. Eli Lilly had applied for a permanent injunction to the courts against TTY Biopharm, which suit is currently before the Taiwan High Court. In addition, Eli Lilly had separately applied to the Taipei District Court for a preliminary injunction against TTY Biopharm to prevent the latter’s use or sale/distribution, which application was granted following first and second instances.

However, on March 6, 2006, the Department of Health nevertheless issued a drug license to TTY Biopharm which enables TTY Biopharm to market the “Gemmis” injection. Eli Lily took the position that TTY Biopharm was in violation of the preliminary injunction, TTY Biopharm, on the other hand, took the position that marketing “Gemmis” injection produced by Gemicitabine from other sources such as ScinoPharm does not violate the preliminary injunction. To impose more pressure on TTY Biopharm, Eli Lilly applied for provisional attachment which was granted by the TDC in January 2009 whereby Eli Lilly must provide a security of 30 million in order to attach the products of TTY Biopharm under 80 million. TTY Biopharm then provided a counter-bond to release the attachment and appealed this provisional attachment ruling to the IP Court.

The IP Court ultimately held that the suit between Eli Lilly and TTY Biopharm and the suit between Eli Lilly and ScinoPharm Taiwan Ltd. regarding infringement of patent rights are both pending and yet to be determined. Further, TTY Biopharm, a listed company with a capital in excess of 900 million, is not a company which will be unable to pay for the infringement, if any is ultimately determined. As such, the IP Court revoked the initial ruling of the TDC with respect to the grant of the provisional attachment and concurrently rejected Eli Lilly’s application for provisional attachment.