Unipharm’s Defense: Pfizer’s Viagra Claim will not Stand Scrutiny

/By Itzhak Dannon /

As we have recently reported, Pfizer, the world’s largest pharmaceutical company filed, over a month ago, a civil suit against the Tel Aviv pharmaceutical company Unipharm in Tel Aviv District Court. Pfizer claims patent infringement on the active imgresingredient of Viagra and therefore seeks NIS10 million (over $2, 700, 000) in damages as well as extensive equitable relief, including injunctions, e.g., an order compelling the destruction of the infringing product (marketed under the name, “Tarim”) due to an alleged violation of its patent.

Now comes Unipharm, Ltd., with a scathing defense. It asserts that Pfizer is well aware that it will not be able to state a claim even if it would ingest a couple of pounds of the active ingredient in Viagra. That is so, according to Unipharm, since its patent on sildenafil, the active ingredient in Viagra, had lost its potency.

Unipharm argues that Pfizer’s claim is frivolous; that from an objective stance it is baseless and that a reasonable plaintiff could not fathom winning it. According to Unipharm’s pleadings, Pfizer’s awareness of the patent’s invalidity is reflected, among other indications, in the fact that it did not seek temporary relief which is one of the remedies a patent holder attempts to secure as a matter of course — if it believes in its ability to convince the court of the ostensible validity of the patent. According to defendant, the use of preliminary injunctive relief in order to enforce, by prohibition, one’s patent rights is designed to mitigate the harm caused by an infringement. According to Unipharm Pfizer does not seriously believe that its patent is valid — not even ostensibly – as evinced by its failure to seek such remedies.

The defendant also contends that the claim in question illustrates predatory behavior in a predatory market. According to Unipharm, Pfizer accomplished a patent registration by withholding crucial information from the Patent Office (in Israel). The goal was to resurrect an Israeli patent’s (the basic patent) that expired, after 20 years of life, in due course in February 2012 and after Pfizer made a vast fortune (the exact amount made in Israel and worldwide will be sought in pre-trial discovery) from its exclusive position as Viagra’s maker and owner.

Unipharm argues that such flawed attempt of using artificial life support system, known in professional jargon as “evergreening, ” is an attempt to preserve the monopoly’s grass green forever. According Unipharm, Pfizer is abusing the legal process and is trying to exploit a patent it knows has no efficacy any longer, while seeking to restrict legitimate competition to Viagra in which it had a monopoly for 15 years, making huge profits from the basic patent. “This is a stillborn attempt that is predatory, wrongful and infected with bad faith to its core, to abusively employ the court house as a tool in an anti-competitive game, ” concludes the defense pleadings.

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