Oct. 28--United Laboratories Inc. (Unilab) challenged Pfizer Inc. to also ask for a restraining order alongside its patent infringement suit after the Filipino-owned drug manufacturing giant this month released Avamax, its generic version of Atorvastatin. Pfizer had said it owns the Philippine patent of the anti-hypertensive Atorvastatin, and it will only expire in 2012. The company sells the drug under the brand name Lipitor.

In a briefing on Tuesday, Jose Maria Ochave, corporate vice president of Unilab's legal services group, said challenging patents were part of the system, and "invalid" and "frivolous" patents, such as that held by Pfizer for Atorvastatin, has grounds for cancellation.

But if Pfizer believes in its patent, it should ask for a temporary restraining order, Ochave told reporters. "Rights granted to patents holders are not exclusive rights to use . . . but rights to prohibit . . ." Pfizer had said it has filed a patent infringement case at the Makati Regional Trial Court on October 6.

Unilab's motion

Susan Villanueva, Unilab's lawyer, said that they filed a motion on October 19 to dismiss Pfizer's patent infringement suit, as she said it was unclear whether Pfizer's co-plaintiff, New York-based Warner-Lambert Company LLC, was the same as the original owner of the patent, Warner-Lambert Company of New Jersey.

Earlier on July 9, Unilab filed with the Intellectual Property Office of the Philippines a suit to invalidate Pfizer patent for Atorvastatin.

Ochave said Avamax is in amorphous form, while Lipitor is crystalline.

Also, Villanueva said Pfizer was "evergreening" on the Atorvastatin patent. "They extend the patent monopoly by filing a new patent that appears to be new but is the same."

Villanueva said Atorvastatin's chemical structure has been patented before. Pfizer, meanwhile, holds the patent for the chemical name, she added.

Villanueva said that the Atorvastatin patent that Pfizer currently holds was just a "restatement of what have been patented before." She added that the drug had been subject of two Philippine patents and one US patent, which have all expired. "A patent should be new, an absolute novelty."

Ochave said the company expects Intellectual Property Office to come out with a decision on the patent invalidation case next year.

He added that Mercury Drug outlets were not yet selling Avamax.

"My assumption is that [Pfizer has filed a patent infringement case] not to win [it], but to create doubts and frighten doctors and retailers," Ochave said.

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