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Morrison Foerster Defeats Preliminary Injunction in Patent Infringement Suit for Sandoz Inc.

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Morrison Foerster successfully defeated Biogen’s motion for a preliminary injunction for its client Sandoz, Inc. (Sandoz) in an ongoing patent infringement case for a multiple sclerosis (MS) treatment.

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Morrison Foerster successfully defeated Biogen’s motion for a preliminary injunction for its client Sandoz, Inc. (Sandoz) in an ongoing patent infringement case for a multiple sclerosis (MS) treatment.In 2019, Sandoz agreed with Polpharma Biologics SA to develop, globally supply, and sell a biosimilar, natalizumab, a widely used MS treatment. Sandoz sought U.S. Food and Drug Administration (FDA) approval in May 2022. Biogen sued, in September 2022, alleging patent infringement and filed a preliminary injunction bid to prevent the launch and sale of the Sandoz product. With Morrison Foerster’s help, Sandoz vigorously opposed.On June 20, Judge Gregory B. Williams issued an order denying the injunction, finding Biogen failed to show irreparable harm or a likelihood of success on the merits. Sandoz can supply and sell its biosimilar natalizumab product following receipt of its pending FDA application.The case is Biogen Inc. et al. v. Sandoz Inc. et al., Docket No. 1:22-cv-01190 (D. Del. Sep 09, 2022).The patent litigation team is led by patent litigation partners Erik Olson (Palo Alto), Matthew Chivvis (San Francisco), and Aaron Fountain (Austin), with associates Rachel Dolphin (San Francisco), Evelyn Chang (Palo Alto), Wesley WL Chen (San Diego), Quinn Walker (Washington, D.C.), Theresa Tan (Palo Alto) and Chelsea Aylin Kehrer (Palo Alto) with support from others in the firm’s Washington, D.C. office.

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Erik Olson’s practice focuses on the litigation of securities, corporate governance, and intellectual property disputes, with particular emphasis on clients in the biotechnology, medical device, telecommunications, and high-technology industries.Erik regularly represents executives, directors, and companies in suits arising from actual or potential mergers, acquisitions, and other strategic transactions. Between 2008 and 2016, Erik has directed teams that defeated preliminary injunction motions, obtained dismissals, or favorably resolved more than twenty cases involving challenges by shareholders to public merger transactions. He is one of the primary authors of the Association of Corporate Counsel’s “White Paper” on managing class action merger litigation. In fall 2016, Erik served as SoftBank Group Corporations’ lead counsel in a trial in the Delaware Court of Chancery that addressed claims by stockholders of Clearwire Corporation that Sprint breached its fiduciary duties in connection with a 2013 acquisition of Clearwire. The trial also concerned stockholders’ claims to an appraisal in connection with the same merger.In 2012 and 2013, Erik served as SoftBank’s primary litigation counsel in connection with state and federal claims that sought to enjoin SoftBank’s acquisition of a controlling interest in Sprint Nextel Corporation and that sought to enjoin the related merger between Sprint Nextel Corporation and Clearwire Corporation. In the Sprint litigation, the lead plaintiffs ultimately withdrew their requests for a preliminary injunction prior to the consummation of the merger and later voluntarily dismissed their claims. Erik served as one of Cogent Inc.’s lead counsel in litigation that sought to enjoin Cogent’s merger with the 3M Company. The Delaware Court of Chancery denied plaintiffs’ motion for a preliminary injunction.In other securities-related matters, Erik has repeatedly obtained dismissals of federal class action lawsuits under the Private Securities Litigation Reform Act and successfully defended those dismissals before the Fourth, Ninth and Tenth Circuits.In 2010 and 2011, Erik obtained a dismissal with prejudice of derivative and class action claims filed against Crocs, Inc., the directors and officers of Crocs, Inc., and Global Cash Access, Inc. In each case, Erik’s clients were successful following a first motion to dismiss. He has also successfully persuaded the SEC to conclude, without penalties, investigations into alleged federal securities law violations for dozens of companies and individuals across a broad range of industries.Erik regularly works on behalf of audit committees and special committees of boards of directors conducting confidential investigations of whistleblower allegations, alleged violations of federal law, and alleged accounting misconduct, such as the allegedly improper recognition of revenue, write-offs concerning inventory and other assets, or the alleged violations of companies’ internal controls.In intellectual property-related matters, Erik regularly assists high-technology, telecommunications and life sciences companies in the prosecution or defense of intellectual property lawsuits with competitors regarding consumer electronics, smartphones, telecommunications equipment, biotechnology products, drugs, or medical devices. Erik served as patentee’s counsel in connection with three high profile patent disputes between major smartphone manufacturers, including in a trial in which the jury awarded the patentee over $1 billion. In 2016, Erik helped Sandoz secure a victory in its patent and intellectual property dispute with Amgen, leading to the introduction of the first “biosimilar” pharmaceutical product under the Affordable Care Act’s Biologics Price Competition and Innovation Act (BPCIA). The case addressed groundbreaking issues regarding the BPCIA’s procedures related to when and how brand name biotechnology companies can assert patents in an effort to stop the introduction of new competition. Erik previously served as a chief architect of the University of California’s patent infringement victory over The Monsanto Company regarding claims to recombinant bovine growth hormone. The resulting settlement, valued at more than $200 million, ranked at the time as one of the top ten settlements in any biotechnology patent case in the United States. Erik advises both patent holders and defendants in connection with intellectual property claims across the country.Erik has served as counsel in numerous state and federal courts, in private arbitrations, and in proceedings before the SEC. He has handled appeals in the California Court of Appeals and the United States Circuit Courts of Appeals for the Third, Fourth, Ninth, Tenth, Eleventh, D.C., and Federal Circuits.From 2007-2008, Erik served as chair of the Litigation Section of the State Bar of California. From 2005-2007, he also served as chair of the Litigation Section’s Rules & Legislation Committee, which reviewed and comments on legislative and rule changes that affect civil litigation in California. Erik currently serves as a member of Morrison & Foerster’s board of directors and serves as Treasurer for the Law Foundation of Silicon Valley, the largest pro bono service provider in Santa Clara County (San Jose, California).Erik graduated from Stanford Law School. While at Stanford, he was elected to the Order of the Coif and was the recipient of the Morie Award for outstanding legal writing.<h4>Representative Experience</h4><ul dir="ltr"><li>Smartphone Litigation Co-led a team that successfully tried a series of high-profile smartphone cases, including a jury verdict of over $1 billion.</li><li>Amgen Inc., et al. v. Sandoz Inc., et al. (U.S. District Court for N.D. Cal., Federal Circuit). Secured a victory on behalf of Sandoz Inc. in the first case to interpret the Affordable Care Act’s Biologics Price Competition and Innovation Act (BPCIA). The federal district court ruled in Sandoz’s favor on all issues before the court, adopting Sandoz’s interpretation of the BPCIA in all respects. The court also denied Amgen’s motions urging a contrary interpretation and seeking a preliminary injunction. The Federal Circuit later affirmed the key elements of Sandoz victory. Erik current represents Sandoz in disputes regarding patents directed toward the purification of proteins expressed using recombinant DNA technology.</li><li>In re Sprint Merger Litigation (Kansas District Court; U.S. District Court for the District of Kansas). Represented SoftBank Corporation in litigation that sought to prevent its acquisition of a controlling interest in Sprint Nextel Corporation. Plaintiffs ultimately withdrew their request for a preliminary injunction after oral argument and then voluntarily dismissed their claims after the transaction closed. (2012-2013).</li><li>In re Clearwire Merger and Appraisal Litigation (ACP v. Sprint Corp.) (Delaware Court of Chancery). Representing SoftBank Corporation in breach of fiduciary duty and appraisal litigation associated with Sprint’s cash merger with Clearwire Corporation. Served as lead counsel at a trial of the fiduciary duty and appraisal claims in the fall of 2016. The case is currently one of the largest appraisal actions ongoing in the Court of Chancery.</li><li>In re Crocs, Inc. Securities Litigation; Wheeler v. Snyder, et al. (D. Colo.). Represented Crocs, Inc. and certain of its current and former officers and directors in shareholder derivative lawsuits filed in Colorado. In February 2009, won dismissal of all derivative claims, with prejudice, on first motion to dismiss. No appeal was filed.</li><li>In re Crocs Inc. Securities Litigation (D. Colo.). Represented Crocs, Inc. and its current and former officers and directors in shareholder class actions (claiming violations of the Exchange Act). Won dismissal of all claims with prejudice pursuant to the Securities Litigation Reform Act of 1995 on a first motion to dismiss.</li><li>In re Cogent Merger Litigation (Del. Court of Chancery & Los Angeles County Superior Court). Represented Cogent Inc. and its directors in a lawsuit challenging its merger with the 3M Company. Successfully defeated a motion seeking a preliminary injunction to enjoin the transaction based on alleged breach of fiduciary duties.</li><li>In re Ameristar Merger Litigation (Nevada State Court). On behalf of Pinnacle Entertainment, the buyer of Ameristar Casinos, defeated motions seeking a preliminary injunction against the closing of the merger and obtained a dismissal of plaintiffs claim.</li><li>In re Global Cash Access Securities Litigation (D. Nev.). Represented Global Cash Access and its executives in securities litigation brought against a payment processor who specialized in the gaming industry. Successfully dismissed certain initial claims and then obtained a favorable settlement, which was fully covered by insurance.</li><li>Hattan v. RH, Inc. (Marin County Superior Court). Reached a favorable settlement on behalf of RH in connection with shareholder litigation stemming from a going-private transaction.</li><li>Ned v. Titan Pharm. Inc., et al. (N.D. Cal.). On behalf of Titan Pharmaceuticals, obtained voluntary dismissal of pending class action securities claims against Titan without need to file a motion to dismiss.</li><li>In re Telik Inc. Securities Litigation (S.D.N.Y.). On behalf of Telik Inc., successfully settled a class action litigation challenging the disclosure of Phase III clinical trial results based on payments by insurers without the need for costly or burdensome discovery.</li><li>Baht v. Global Defense Technology & Systems, Inc. (Del. Court of Chancery). Representing Global Defense Technology & Systems Inc. and its directors in litigation challenging its proposed merger with a private equity buyer.</li><li>Elan v. Abraxis (U.S. District Court for the District of Delaware). Represented Abraxis in its high profile patent dispute and trial with Elan regarding technology used in the delivery of chemotherapy agents.</li><li>SEC Investigations. Successfully persuaded the SEC to conclude, without penalties, investigations into alleged federal securities law violations at a software company, a home goods retailer, and a medical device manufacturer. (2005-2011)</li><li dir="ltr">Stock-Options Investigations. Represented multiple U.S. public companies with far-reaching internal investigations regarding the company’s employee stock-option program. (2006-2007)</li></ul><h4>Leadership Roles</h4><ul dir="ltr"><li dir="ltr">Current member of Morrison Foerster’s board of directors</li><li>Treasurer and chair of the Finance Committee for the Law Foundation of Silicon Valley, the largest pro bono service provider in Santa Clara County (San Jose, California)</li><li>Serves on the committee that evaluates civil rule changes in the Northern District of California</li><li>Chair of the Litigation Section of the State Bar of California (2007 – 2008)</li><li>Chair of the Litigation Section’s Rules & Legislation Committee (2005 – 2007)</li></ul>

Erik J. Olson

Partner

Matthew protects his clients’ intellectual property and defends his clients wrongly accused of infringement. His hearing and trial experience is extensive. Whether exploring complex technical issues regarding a biologic drug, or digging into the finer points of patent law, he excels at keeping his opponents on their toes. Intellectual Asset Management 1000 remarked that Matthew is “a skilled technical lawyer and brief writer who can handle large and nuanced cases.” He has litigated patent matters in many of the top patent venues throughout the United States, including the District Courts of California, Texas, Delaware, and New Jersey, the Federal Circuit, and the International Trade Commission.Life sciences clients often rely on Matthew’s extensive technical experience and his ability to grasp complex and cutting-edge issues quickly. His work in this area includes proceedings involving monoclonal antibodies, antibody-drug conjugates, small molecule inhibitors, vaccines, nutritional supplements, bioimplants, drug-eluting stents, blood glucose monitoring devices, plant genetics, and animal husbandry. He knows the ins and outs of the “patent dance” in Biologics Price Competition and Innovation Act (BPCIA) proceedings, and has advised clients on successful strategies for engaging in multi-phased BPCIA and Hatch-Waxman Act matters.Matthew is a registered patent attorney, and his considerable experience includes practicing before the United States Patent and Trademark Office, especially in inter partes and post-grant review proceedings. He also regularly advises clients on plant and agriculture intellectual property matters, including strategic use of plant patents, plant-variety protection certificates, and trademark rights. In addition to life sciences matters, Matthew has litigated cases involving internet firewalls, network security, virtualization, smartphone, interactive television, website, and display technologies.Matthew graduated from law school magna cum laude and was presented with the Academic Excellence Award for his graduating class. He clerked for Chief Judge James Ware (ret.) of the Northern District of California from 2007 to 2008. Before law school, Matthew received a Bachelor of Science in molecular biology.Having grown up in Alaska, Matthew has great appreciation for the outdoors. In his free time, he enjoys skiing, hiking, and trail running.

Matthew A. Chivvis

Aaron is an experienced courtroom lawyer who partners with his clients to protect their intellectual property. He frequently serves as lead counsel in the most important patent venues in the nation, including the Western and Eastern Districts of Texas, the District of Delaware, the International Trade Commission, and the Court of Appeals for the Federal Circuit.Leveraging his background as a research scientist, Aaron crafts accurate, effective strategies involving complex innovations. He has represented clients in disputes before the U.S. Patent and Trademark Office, including inter partes review proceedings before the PTAB, and he has counseled clients on patent portfolio management and strategy. Aaron has litigated matters across a diverse mix of industries, including:<ul><li>Specialty chemicals</li><li>Medical devices</li><li>Molecular diagnostics</li><li>Sportswear</li><li>Consumer electronics</li><li>Topical pharmaceuticals</li><li>Software</li><li>Telecom infrastructure</li><li>Oil field services</li><li>Automotive</li><li>Semiconductors</li></ul>Prior to his legal career, Aaron was a research scientist focusing on instrumentation design and method development for proteomics research. Additionally, he previously served as a law clerk to the Honorable Arthur J. Gajarsa for the U.S. Court of Appeals for the Federal Circuit and as a law clerk to the Honorable Harry Lee Hudspeth for the U.S. District Court for the Western District of Texas. Aaron was also a judicial intern to the Honorable Ewing Werlein, Jr. for the U.S. District Court for the Southern District of Texas.Aaron has been recognized in leading publications for intellectual property, including Chambers USA, Law360, Super Lawyers, and The Legal 500 US.Aaron’s pro bono activities include successfully serving as lead appellate counsel representing veterans before the United States Court of Appeals for Veterans Claims and lawful permanent residents before the Board of Immigration Appeals. He is a member of the Federal Circuit Bar Association, the Austin Intellectual Property Lawyers Association, and the American Intellectual Property Lawyers Association.

Aaron Fountain

Rachel Dolphin is an associate in the Litigation Department. Her practice focuses on intellectual property litigation and general commercial litigation.Rachel’s intellectual property practice concentrates on patent litigation and includes litigation, pre-litigation, inter partes review and other post-grant proceedings. Her work involves a variety of technology fields, including biotechnology, pharmaceuticals, communications, and information technology.Rachel received her J.D. from Harvard Law School, cum laude, in 2015. While at Harvard, she served as a student attorney for the Legal Services Center, Family Law and Domestic Violence Unit, representing domestic violence survivors in various family law matters. Additionally, she worked as a legal extern for Justice Judith Ashmann-Gerst of the California Court of Appeal, Second District.Rachel is admitted to practice law in California.

Rachel S. Dolphin

Associate

Evelyn Chang is an associate in the Litigation Department of Morrison & Foerster’s Palo Alto office.Evelyn’s practice focuses on a range of intellectual property issues, including patent disputes and litigation. She has also worked on contract disputes over patent and technology rights for biopharmaceutical companies.Evelyn received her J.D. from Harvard Law School, where she was a digest submissions editor of the Harvard Journal of Law and Technology. She was co-president and delegation chair of the Harvard Asia Law Society and participated in the Harvard Law School Cyberlaw Clinic. Evelyn received her M.S. and B.S. in chemical engineering from Stanford University.

Evelyn Li-Jin Chang

Dr. Wesley Chen is an associate in the Litigation Department of Morrison & Foerster’s San Diego office.Wesley received his J.D. from the University of Southern California, where he served as president of the Intellectual Property & Technology Law Society and co-president of the International Refugee Assistance Project. While in law school, he wrote and edited for the Interdisciplinary Law Journal. He also externed at the USC Stevens Center for Innovation and assisted in technology transfer matters.He received his Ph.D. in biological sciences from the University of California, Irvine, where he was awarded a California Institute for Regenerative Medicine (CIRM) training grant to investigate the application of induced pluripotent stem cell technology in Alzheimer’s disease. Wesley received his B.S. in neuroscience from the University of California, Los Angeles.

Wesley Chen

Theresa Tan is an associate in the Litigation Department of Morrison Foerster’s Palo Alto office.Before joining Morrison Foerster, Theresa was a summer associate at MoFo and served as a judicial extern for the Honorable Edward M. Chen of the U.S. District Court for the Northern District of California. As a summer associate and judicial extern, she gained experience in intellectual property and employment law matters.As a law student at the University of California, Berkeley, School of Law, Theresa was a member of the Berkeley Technology Law Journal, where she reviewed articles and prepared them for publication. She also served as social chair of the Asian Pacific American Law Students Association and assisted at Berkeley’s Wage Claim Clinic on employment law violation cases. Prior to law school, Theresa worked as a financial analyst at several technology companies, including Intel and ARM.Theresa received her B.B.A. in finance with honors from the University of Texas at Austin.

Theresa Tan

Chelsea received her J.D. from the University of Chicago Law School. While in law school, Chelsea worked in the International Human Rights Clinic, where she drafted a report for the International Labour Organization (ILO) on the migrant wage gap. Chelsea also interned within the Criminal Justice and Security Division at Centro de Estudios Legales y Sociales in Argentina, where she worked on Institutional Violence initiatives.Chelsea received her B.A. summa cum laude in political science and Spanish from West Virginia University.