In an opinion issued on December 14, 2017, the United States Court of Appeals for the Federal Circuit held that the 2010 Biologics Price Competition and Innovation Act (“BPCIA”) preempts the use of state law to penalize biosimilars applicants who fail to disclose information about their abbreviated Biologics License Applications (“aBLAs”) or manufacturing processes as required by 42 U.S.C. § 262(l)(2)(A).
Amgen’s State Law Claims
This is the latest in a line of BPCIA decisions arising out of Sandoz’s application to market a biosimilar version of Amgen’s Neupogen (filgrastim) biologic. (For more complete coverage of the facts and prior proceedings, see our prior coverage, including the Supreme Court and Federal Circuit opinions.) In relevant part, after filing its aBLA, Sandoz refused to provide Amgen with a copy of its aBLA and manufacturing information as required by § 262(l)(2)(A). Amgen then filed suit, asserting both patent infringement under the BPCIA as well as state law claims under California law, including a claim for unfair competition. Sandoz asserted, among its many defenses, an affirmative defense that Amgen’s state law claims are preempted by the federal BPCIA. However, neither the district court nor the Federal Circuit addressed preemption on the merits. On June 12, 2017, the Supreme Court ruled that the BPCIA’s “patent dance” information exchange provisions are optional and that an aBLA applicant may refuse to provide a reference product sponsor with a copy of the aBLA and manufacturing information required by § 262(l)(2)(A). The Court, however, remanded to the Federal Circuit for a determination of whether the BPCIA preempts Amgen’s state law claims.