Samsung Bioepis UK Limited v Alexion Pharmaceuticals, Inc

An application to expedite a patent trial requires an objectively ascertainable degree of urgency before the other factors are considered. Once that threshold is crossed, the factors governing expedition are assessed on a sliding scale and in an analogue, rather than binary, way.

A case does not require a fixed cliff-edge date. Continuing commercial harm which a trial might bring to an end can justify expedition. The relevant considerations include the need for expedition, the administration of justice, prejudice to the parties and other special factors. Foreign proceedings may support expedition, but cannot ordinarily establish it without an underlying commercial need.

Samsung sought expedition of infringement and revocation proceedings concerning Alexion’s European patent (UK) for eculizumab. Amgen, also involved in related infringement proceedings, took a neutral stance but intended to co-operate with Samsung.

Samsung sought a trial as early as December 2024, relying principally on the continuing commercial effect of Alexion’s communications about its patent rights to public authorities and prescribers. Alexion resisted, relying on the complexity of the case, adviser availability and related UPC proceedings. The central issue was whether expedition was justified and, if so, when the trial could practicably be heard.

1. Application granted. The trial was directed to be expedited for nine days, at a time no earlier than mid-February 2025.
2. The governing approach was derived from WL Gore & Associates v Geox [2008] EWCA Civ 622: the court considers whether there is good reason for expedition, whether expedition would interfere with the administration of justice, whether it would cause prejudice, and whether there are other special factors.
3. The requirement for objective urgency is a threshold. The applicant must show some objectively ascertainable urgency before the remaining factors are considered. Once that threshold is crossed, the factors operate on a sliding scale and are assessed in an analogue, not binary, manner, following Petter v EMC [2015] EWCA Civ 480 and Teva v Janssen [2021] EWHC 1922 (Pat).
4. A fixed cliff-edge date is not essential. Continuing harm which may reasonably be brought to an end by an early trial can provide sufficient urgency. The court accepted that the asserted patent rights could continue to chill decisions to adopt biosimilar products and that expedition could provide commercial certainty.
5. The UPC proceedings were only a secondary consideration. They could support an application already justified by the UK commercial position, but could not independently justify expedition because there was no injunction gap and the UPC could determine all issues itself.
6. The complexity of the pleadings and the estimated nine-day trial did not prevent expedition. The court expected Samsung and Amgen to align their positions and found that the Patents Court could accommodate a trial from mid-February 2025 without undue disruption. Alexion’s adviser-availability concerns attracted little weight in the circumstances.