Protection of the Filing of a Patent in Argentina: Case Novartis AG vs Laboratorios LKM, SA


Recently has come to an end the litigation between the Swiss company Novartis AG (NAG) against the Argentinean company Laboratorios LKM, SA (LKM), for the infringement of a patent property of NAG for beta crystalline form of  imatinib mesylate. The patent was filed on 1998 and granted on 2006.

The litigation started on 2007, when NAG sued LKM to avoid the marketing of the product Imatinib Martian. In 2004 LMK requested authorization of the National Authority of Drug, Food and Medical Technology (ANMAT) to market this product. 

The first instance judge dismissed the case, and in appeal, the Third Chamber of the Federal Civil and Commercial Court confirmed the decision of the first instance judge, and based the decision in the argentinean legislation, that does not protect the pending patent only the granting one, and also because the same law allows the use of a patent for research, taking in account the LKM never market the product.

It exists a contradiction between the decision taken in appeal and the Argentinean Law (and International Treaties) regarding the term of protection of a patent (20 years). In the case of the patent of  NAG that took 8 years until granted, it could be assumed that the patent will only have 12 years of protection, according to the decision made by the Argentinean Court of Appeal. 

Written by Sandra Lucrecia Batres Guerra



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