The Patents Court has granted a new form of declaratory relief that has never been seen before in the UK, in the trial of Fujifilm Kyowa Kirin Biologics Co. Ltd & Anor (FKB) v AbbVie Biotechnology Ltd. The purpose of the declarations, which are similar in form to so called 'Arrow declarations', is to provide commercial certainty for the claimants in preparation for the launch of their biosimilar versions of the antibody drug adalimumab (currently sold under the trade mark Humira). Humira is the highest selling prescription drug in the world by global sales.
The decision will be encouraging for parties seeking to clear the way ahead of product launches (e.g. generic drug manufactures), although such declarations are likely to be granted only where there are unusual circumstances preventing the claimant from obtaining commercial certainty in the usual way, for example by seeking revocation of the relevant patents.