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Biosimilars Law Blog

Posted in News & Events

Biosimilars Presentation at Sino-American Pharmaceutical Conference

On June 24, 2017, Hogan Lovells attorneys Xin Tao (Washington DC Office) and Liang Xu (Beijing Office) spoke at the 15th Annual Conference of the Sino-American Pharmaceutical Professionals Association – Greater Philadelphia’s annual conference. Mr. Tao presented on the “Biosimilar Exclusivity and Interchangeability: A Legal Primer” for both innovators and biosimilar applicants. Mr. Liang presented on “Deal Structure and Legal Considerations” for cross-border life science transactions.

This event drew over 1,000 people from both the Chinese and U.S. pharmaceutical industry. Link to the event is available here.

Posted in Biosimilars Patent Exchange, News & Events

Supreme Court Issues Landmark Biosimilar Ruling

On June 12, 2017, the Supreme Court issued a unanimous ruling in Sandoz Inc. v. Amgen Inc. The case interprets two provisions of the Biologics Price Competition and Innovation Act of 2009 (BPCIA) and is expected to significantly impact the approval and patent litigation processes for biosimilar applications. First, the BPCIA requires a biosimilar applicant to notify the reference product sponsor at least 180 days prior to commercial marketing, and the Supreme Court held that an applicant may provide notice prior to approval. Second, the BPCIA provides that a biosimilar applicant shall provide the reference product sponsor with a copy of the biosimilar application, and the Supreme Court held that the BPCIA does not provide injunctive relief to enforce that disclosure provision. Rather, in situations where the biosimilar application is not provided, the sole remedy under the BPCIA is for the reference product sponsor to seek declaratory judgment regarding patent infringement. Also, the Supreme Court remanded the second issue so that the Federal Circuit can consider whether injunctive relief is available under state unfair competition law.

As this blog has reported before, Amgen markets Neupogen (filgrastim), a biologic. Sandoz submitted a biosimilar application for Zarxio (filgrastim-sndz) referencing Neupogen on May 8, 2014. (Zarxio received FDA approval on March 6, 2015.) Although Sandoz notified Amgen that Sandoz had submitted an application and that it intended to market Zarxio immediately upon approval, Sandoz did not provide a copy of the application as described under the patent resolution process, or “patent dance,” in 42 USC 262(l)(2)(A). Previously, the Federal Circuit held that Sandoz did not violate the BPCIA in failing to disclose its application and that the BPCIA provides, as the exclusive remedy for failure to disclose, that the innovator may seek an injunction for artificial infringement under 35 USC 271(e). The Federal Circuit also held that the biosimilar applicant may not provide its mandatory 180-day notice of commercial marketing until after FDA has granted approval of the application.

The Supreme Court reversed the Federal Circuit on the timing of the commercial marketing notice. The Supreme Court held that while notice must be given at least 180 days before marketing, the notice may come either before or after FDA approval of the application. Accordingly, the biosimilar applicant may choose to provide notice while the application is still pending and will not be required to wait 180 days after approval to begin marketing its biosimilar product.

Regarding the application disclosure issue, the Supreme Court agreed with the Federal Circuit that disclosure was not enforceable by injunction under the BPCIA, but for different reasons than those provided by the Federal Circuit. The Court found that disclosing an application was not part of the act of artificial infringement under 35 USC 271(e), and thus failure to disclose the application was not remediable under section 271(e). Instead, the sole remedy under BPCIA for failure to disclose an application is supplied by section 262(l)(9)(C), which authorizes the innovator, but not the applicant, to bring an immediate declaratory-judgment action for infringement regarding any relevant patent. Thus, the innovator gains the control over the scope and timing of the patent litigation that the applicant would otherwise have if it disclosed its application as described in BPCIA. This declaratory-judgment remedy, the Court found, “excludes all other federal remedies, including injunctive relief.”

However, the Court held that the Federal Circuit improperly dismissed the possibility of state law remedies including, in this case, remedies for violation of California’s unfair competition law. The parties framed the issue as whether the disclosure provision under section 262(l)(2)(A) is mandatory, in which case a biosimilar applicant that fails to disclose its application acts unlawfully and violates state unfair competition law. The Court refused to address that issue because it did not present a question of federal law. Rather, the Court directed the Federal Circuit to determine on remand whether noncompliance with the application disclosure provision would be unlawful as a matter of California law, and whether BPCIA preempts any additional state law remedy.

Posted in Biosimilar labeling, Biosimilars Patent Exchange, News & Events

Guide to Recent Biosimilar Activity by FDA and in the Supreme Court

The US Food and Drug Administration (FDA) recently completed a flurry of activity to help define the biosimilar pathway, including issuing final guidances on biosimilar clinical pharmacology and biologics non-proprietary naming, as well as a draft guidance on biosimilar interchangeability. In parallel, litigation that should clarify the BPCIA patent resolution process, including timing of the biosimilar applicant’s notice of commercial marketing is proceeding through the Supreme Court.

Guidance for Industry: Clinical Pharmacology Data to Support a Demonstration of Biosimilarity to a Reference Product (December 2016): With this guidance, FDA finalizes the previous draft guidance of the same title. The final guidance largely tracks the previous draft. Of note, the final guidance removes categories of “similarity” (see previous post) in favor of describing certainty about similarity derived from analytical data on a development-phase continuum. This change is consistent with the statutory requirement that a biosimilar must be “highly similar” to the reference product.

Guidance for Industry: Nonproprietary Naming of Biological Products (January 2017): The final version of this guidance maintains the FDA position in the draft guidance that all biological products should carry distinguishable non-proprietary names. Specifically, related biologics and biosimilars should share a common core name, which should be followed by a dash and a four letter nonsense suffix. The core names are anticipated to be United State Adopted Names (USAN) for the biological substance. For example, the guidance provides a made-up example, replicamab-cznm and replicamab-hjxf, for two different products containing a version of the replicamab biological substance. Sponsors of new biological products should submit up to 10 proposed suffixes to the core name as early as the IND stage of development. Sponsors of marketed products should submit the suffix name change as a prior approval supplement.

Draft Guidance for Industry: Considerations in Demonstrating Interchangeability With a Reference Product (January 2017) (Draft Interchangeability Guidance): Perhaps the most anticipated biosimilars guidance since the enactment of the BPCIA, the Draft Interchangeability Guidance addresses general principles, product specific factors, the type and amount of data and other information, appropriate use of approved products in comparative studies, post-marketing studies, and product presentation (i.e., packaging and delivery devices) for demonstrating interchangeability to a reference biological product.

The Draft Interchangeability Guidance does not anticipate immediate situations where an interchangeable biologic may be approved without clinical studies. However, the clinical studies for products intended to be used more than once (i.e., switching studies) may use different endpoints than those used to demonstrate biosimilarity, and PK/PD endpoints rather than clinical endpoints are recommended. In general, the switching studies should be conducted in patients, not in healthy volunteers, and extrapolation of indications with appropriate scientific justification will be permitted for interchangeable biologics as it is for biosimilars. FDA recommends studies that evaluate changes in treatment involving two or more switches (alternating intervals) with the proposed interchangeable biologic and the reference product. The US-approved reference product should be used for studies to support interchangeability.

Because the interchangeable product may be substituted without the knowledge of the prescriber, FDA is concerned that patients and care-givers will be able to appropriately use the proposed product. Sponsors are instructed to conduct threshold analyses to determine if there are any minor or major differences in design between the reference and proposed interchangeable product, which will determine the need for additional data and information, such as human factors studies, to support a demonstration of interchangeability. Interoperability is not required, but differences should not negatively affect the end-user’s ability to deliver the biological product. In an appendix, FDA provides additional advice on comparative human factor study design and analysis.

Finally, the Supreme Court is preparing to hear arguments on April 26, 2017 regarding the BPCIA patent resolution process, including the notice of commercial marketing requirement. The case, Sandoz Inc. v. Amgen Inc., Docket no. 15-1039, involves the operation of two notification provisions in the BPCIA. Under the BPCIA, a biosimilar applicant is directed to provide a reference product sponsor (RPS) with a copy of its marketing application no later than 20 days after FDA notifies the applicant that its application has been accepted for review. 42 USC 262(l)(2). This provision is designed to permit the RPS to respond, within 60 days, with a statement asserting any patents that will be infringed by the application, and then a series of steps to resolve infringement disputes, culminating with a right to bring an infringement suit. 42 USC 262(l)(3)-(6). The Federal Circuit concluded that the biosimilar applicant may choose not to provide a copy of its application, and the only remedy available to the RPS is to seek a claim of patent infringement. The Supreme Court will now consider whether this notification is, in fact, optional. Second, the BPCIA directs that a biosimilar applicant “shall provide notice to the [RPS] not later than 180 days before the date of the first commercial marketing” of the licensed biosimilar product. 42 USC 262(l)(8). The Federal Circuit held that the biosimilar applicant cannot give the required notice until FDA has approved the biosimilar application. The Supreme Court will consider whether the biosimilar applicant may give the notice during the pendency of its application so that it may begin marketing at the time that its application is approved instead of having to wait for six months after approval. The US Solicitor General has weighed in and opined that the Federal Circuit was correct to view the only remedy for failure to disclose the marketing application to be declaratory relief, but that the Federal Circuit should be reversed on the timing of notice to the RPS, which may be given prior to approval of the application. A decision in the case is expected before the end of June, and the Supreme Court’s ruling on both issues is expected to have profound effects for biosimilar development.

Posted in Biosimilar labeling, News & Events

FDA Denies Three Petitions on Biosimilar Labeling: Refers Petitioners to Guidance Process

The U.S. Food and Drug Administration denied three pending petitions regarding biosimilar labeling without substantively addressing most of the issues raised in the petitions. FDA’s denial letter indicates that biosimilar labeling guidelines are still in flux while FDA works to finalize its March 2016 Draft Guidance for Industry: Labeling for Biosimilar Products. According to FDA,
“FDA has neither adopted nor abandoned a policy on biosimilar labeling.” Additionally, FDA notes that the labeling for the first biosimilar approvals, Zarxio (filgrastim-sndz) and Inflectra (infliximab-dyab), do not signal agency policy regarding biosimilar labeling. Rather, they reflect the agency’s actions on these specific products.

The petitions from AbbVie, Inc., the United Auto Workers (UAW) Retiree Medical Benefits and other investors, and the Pharmaceutical Research and Manufacturers of America (PhRMA) jointly with the Biotechnology Innovation Organization (BIO) were filed from June through December 2015. FDA notes the overlap between issues raised in the petitions and those addressed by its March 2016 Draft Guidance for Industry: Labeling for Biosimilar Products. The agency is developing a more broadly applicable policy toward biosimilar labeling through this guidance process.

Except for a few issues that were substantively addressed, FDA intends to review the issues raised in the petitions with the comments received in the docket for the Draft Guidance (FDA-2016-D-0643), which “will permit FDA to more efficiently finalize the biosimilar labeling guidance ….” The issues that were substantively denied include a request for a public hearing and an argument premised on the fact that FDA has unlawfully applied a “same labeling” approach. FDA denied that it has used a same labeling approach and reiterated that biosimilar labeling should include essential scientific information from the reference product labeling, with necessary product-specific modifications.

The formal comment period for the Labeling Guidance was extended to August 2, 2016.

Posted in Global Comparisons, News & Events

AIFA publishes “Second Concept Paper” on biosimilars

On June 15, 2016, AIFA (the Italian Medicines Agency) published a “Second Concept Paper” on the use of biosimilars within the National Health System (NHS). The document is intended to start a discussion that should eventually lead to an amended or new version of the agency’s Position Paper of 28 March 2013 on the same topic.

Relevance of AIFA Position Paper

The number and importance of biological medicinal products purchased by the National Health System (NHS) is constantly increasing. So it is their cost, in particular, for hospitals, which are often their ultimate purchasers. While in Italy territorial expenditure (i.e. for products distributed by territorial pharmacies to patients) seems to be under control, hospital expenditure is of concern, not least for the impact of highly innovative and expensive medicinal products made available by the Industry in the last years, while more are expected to come.

As patent protection on biological medicinal products expires, substitution of biological medicinal products with biosimilars may become a compelling need for hospitals to meet budgetary constraints. However, as physicians and experts know (and it is stipulated by EMA’s Guidelines), biosimilars are not identical to the original biological products of reference.

AIFA Position Paper 2013

This is acknowledged by AIFA’s Position Paper of 2013, which clearly states that biosimilars cannot be regarded as equivalent products and therefore no room is left for their automatic substitution by pharmacies. While “the choice to use a biological medicinal product or a biosimilar should be made by the physician prescribing the therapy“, AIFA noted that “biosimilars not only are a therapeutic option available to the treating physicians, but they should be preferred, if they are of economic advantage, in particular for the treatment of naive patients“.
In sum, biosimilars are not identical and are not interchangeable with the reference biological medicinal products (in the meaning of an automatic substitution in the therapy). For patients under treatment the use of biosimilars should be decided by the physician, provided that no safety and efficacy risks may derive to the patient.

AIFA Second Concept Paper

No material changes are proposed by AIFA as to the general principles. However, the agency seems to want to open the door for a more frequent use of biosimilars also for non-naive patients. The Second Concept Paper now proposes that the “biosimilar is a therapeutic option whereby the risk-benefit ratio is the same as for the corresponding original biological product of reference, as it is proved by the regulatory assessment procedure for the authorisation. Such considerations apply also to the patients under treatment, where the opportunity of the change is left to the clinical appreciation of the physician“.

That said, as biologicals and biosimilars are not identical (and this is still the opinion of AIFA), the risk-benefit ratio may be comparable but it is not necessarily the same. Moreover, the essential difference between biological and biosimilar products may still justify a different approach for naive patients and for those under treatment.

Since AIFA’s Second Concept Paper is intended for the discussion with the relevant stakeholders, we do not rule out that such aspects may be subject of additional considerations also on accounts of input from the Industry and the medical profession.

Comments on the Second Concept Paper are due by September 15, 2016.

Posted in Global Comparisons, News & Events

Biosimilar switching: Dutch MoH announces the set-up of a national system for biological medicinal products

The Dutch Minister of Health (MoH) announced the set-up of a national system to trace the safety of biological medicinal products. The MoH expects an increase in the number of biosimilar prescriptions. The national system should contribute to a responsible use of such cheaper alternatives and as such lead to a sustainable Dutch healthcare system. With that this initiative also fits in the vision of the MoH on medicinal products as published earlier this year.

The MoH asked the Netherlands Pharmacovigilance Centre Lareb to set-up the national system and made fundings available for this (EUR 300.000,-). Lareb will start this Fall with monitoring 5 hospitals and will monitor patients that are prescribed with a biological medicinal product (biosimilar and/or innovator biological). Based on these experiences, Lareb will work on a proposal for a national system that ensures safe switching between biological medicinal products. The system also aims to strengthen the faith in biological medicinal products, which essentially appears to aim at strengthening trust in biosimilars.

Posted in Biosimilars Patent Exchange, News & Events

FDA Guidance on Transition Biological Products: Implications for Exclusivity and Patent Listings

FDA issued a draft guidance on March 14, 2016 explaining how the agency proposes to implement the provisions under the Biologics Price Competition and Innovation Act of 2009 (BPCIA) for moving protein products currently approved under the drug statute (section 505 of the Food, Drug and Cosmetic Act) to the biologics system (section 351 of the Public Health Service Act). Essentially, the BPCIA requires that as of March 23, 2020, all new drug applications (NDAs) and abbreviated new drug applications (ANDAs) for protein products will be “deemed to be a license” under section 351 of the Public Health Service Act (PHS Act). The draft guidance is the first time FDA has issued an interpretation of the “deemed to be a license” provision. Continue Reading

Posted in Biosimilar Definitions, News & Events

FDA Announces Policy for Unique Nonproprietary Names for Biologics and Biosimilars

In a Federal Register notice, FDA announced its draft guidance, “Nonproprietary Naming of Biological Products,” in which the agency articulates the need “for biological products licensed under the Public Health Service Act (PHS Act) to bear a nonproprietary name that includes an FDA-designated suffix.”  Described in an accompanying proposed rule, the Agency proposes that the proper name of all biologics includes a core name and a designated suffix.  For originator products, the core name would be the name adopted by the United States Adopted Name (USAN) Council for the drug substance when available.  Related, biosimilar or interchangeable products would include the core name of the relevant, previously licensed product and a designated, 4-letter suffix attached by a hyphen.

Essentially, FDA is proposing a unique nonproprietary naming policy for all biologics approved under PHSA 351(a) or 351(k).  While ending some speculation on FDA’s policy toward naming of biosimilars, the guidance seeks extensive input from stakeholders regarding the application of a four-letter suffix to distinguish all biologics and biosimilars from one another and whether interchangeable biologics should similarly have unique suffixes or share the same four-letter suffix.   FDA summarized its intention with this policy:

“By differentiating biological products from one another that have not been determined by the FDA to be interchangeable, this naming convention is intended to help minimize inadvertent substitution. Inadvertent substitution may lead to unintended alternating or switching of biological products that have not been determined by FDA to be interchangeable. A naming convention that differentiates among biological products also could help facilitate pharmacovigilance for all biological products. By applying this naming convention to all biological products, this approach is intended to: (1) Encourage routine use of designated suffixes in ordering, prescribing, dispensing, and recordkeeping practices and (2) avoid inaccurate perceptions of the safety and effectiveness of biological products based on their licensure pathways.”

In the accompanying proposed rule, FDA provides additional details on its proposed naming policy and the application of this policy to six products.  Each of the six products is either a reference product for an approved or publicly disclosed biosimilar product application or a biological product that is either biosimilar to or related to one of these reference products.

Comments on the guidance, which has been assigned Docket No. FDA-2013-D-1543, are open through October 27, 2015.  (Although, per FDA regulation, comments on a guidance may be received at any time.)  Comments on the proposed rule, including  the assignment of proper names, should be sent to Docket No. FDA-2015-N-0648, which is open through November 12, 2015.


Posted in Biosimilar labeling

AbbVie Challenges FDA Biosimilar Labeling

In a citizen petition, AbbVie has challenged the Food and Drug Administration’s (FDA’s) approach to biosimilar labeling, as implemented in the agency’s recent approval for Zarxio (filgrastim-sndz) as a biosimilar to Neupoen (filgrastim).  As we previously blogged, the prescribing information FDA approved for Zarxio seems to follow a “generic drug” model; the Zarxio labeling is essentially the same as Neupogen’s, except for details regarding the administration of the product, which differ.  The labeling contains none of the substantial clinical or preclinical data submitted in the Zarxio application (see here), and which FDA presumably relied on in finding the product to be biosimilar and safe and effective; only Neupogen data are found in the Zarxio labeling.

The AbbVie petition requests that FDA require that the approved prescription drug labeling for biological products licensed under section 351(k) of the PHSA contain:

  • A clear statement that the product is a biosimilar, that the biosimilar is licensed for fewer than all the reference product’s conditions of use (if applicable), and that the biosimilar’s licensed conditions of use were based on extrapolation (if applicable);
  • A clear statement that FDA has not determined that the biosimilar product is interchangeable with the reference product (if applicable); and
  • A concise description of the pertinent data developed to support licensure of the biosimilar, along with information adequate to enable prescribers to distinguish data derived from studies of the biosimilar from data derived from studies of the reference product.

There is an open docket, FDA-2015-P-2000, while FDA considers the petition submitted June 2, 2015.

Posted in News & Events

FDA Updates U.S. Biosimilar Guidances

Five years after enactment of the BPCIA and following its first biosimilar approval, the U.S. Food and Drug Administration finalized its initial guidances describing the scientific and regulatory expectations for biosimilar approval under the 351(k) pathway.

A list of current versions of all biosimilars guidances is readily accessible on FDA’s web site.