"This is a continuously changing sector"
The head of the healthcare and life sciences practice at Eversheds Sutherland discusses Covid’s impact on his practice and clients and what advice he would give young lawyers.
Leaders League: Now that things are returning to normal, what kind of second half of the year do you foresee for Eversheds’s healthcare and life sciences practice?
Kiko Carrión: The pandemic has been, from a strictly professional point of view, very fruitful for our life sciences practice. The lawyers in our various practice areas have been serving our regular clientele (pharmaceutical laboratories, manufacturers and marketers of medical devices, private hospitals, associations, etc.) and others who have developed business initiatives related to the pandemic and public health for the first time. For example, printer technology companies that started manufacturing personal protective equipment in the worst moments of the pandemic. During this period, our cross-sector health team has been reinforced by new human resources, the expertise of our younger lawyers, the interaction between our different practice areas and our collaborations with our consulting partners. The collaboration with Angel Fernandez, the former CEO of MSD Spain, is helping us develop our strategic orientation. We look to the future with great confidence.
You are a seasoned dispute resolver. Could you walk us through a couple of cases you have participated in recently that were particularly influential or significant?
Luckily, this has been a year in which my team has had the chance to participate in very interesting cases. However, if I had to choose, I would highlight the following: A longstanding pharmaceutical client retained us to advise and defend its patent protection and SPC [supplementary protection certificate] rights for one of its anticholesteremic blockbusters. This case was particularly influential since it had a significant impact on the EU’s intellectual property rights framework regarding Regulation 469/2009 on the supplementary protection certificate for medical products, which extends patent protections for medical products. The ruling that will be issued (in Spain and other EU countries where patent rights are also being infringed by the generics companies) will be key to defining the protection granted by the SPC to combinations of active ingredients.
The healthcare and life sciences sector is a very different and specialized space
The second case involved MSD defending , its patent rights for its vaginal birth control ring in Spain and across Europe. As part of the litigation, the firm applied for injunctive relief to prohibit the opposing party from manufacturing and commercializing Nuvaring due to patent infringement, which was initially approved but ultimately denied.
As a result, the counterparty sued MSD for losses and damages arising from the adoption and subsequent revocation of the precautionary measures. Other companies have also requested the court’s intervention as third parties claim damages and losses that they believe they have suffered.
Now, we are waiting on the court to decide whether to hear the lawsuit as well as the request of the third parties for it to intervene in the proceedings.
What will be the main challenges for healthcare, life sciences and patent lawyers over the next five years?
Lawyers will face several challenges, given that this is an emerging and continuously changing sector, which means lawyers need to keep up to date every day. The challenges that lawyers will face are the same that clients will be confronting. One that will continue over the following years is the impact of technology on the healthcare sector. There are certain practices that are still not regulated in Spain, such as digital medicine. This lack of a legal framework creates uncertainty for clients. The challenge in this case is advising healthcare companies without having a specific legal framework to do so.
If you could change current patent law, what changes would you make?
I would harmonize patent laws at both the EU and international levels.
You also have expertise in the transport industry. Have you been involved in any interesting issues in this sector recently, especially relating to innovation?
One of our clients is a leading operator of food and beverage brands in travel locations, operating restaurants, bars, cafes, food courts, lounges and convenience stores in airports, train stations, motorway service stations, shopping malls, conference centers and other leisure locations.
This client entered into 35 lease agreements relating to business premises located at domestic airports. Due to COVID-19 and the public health and mobility restrictions that were adopted, our client suffered a dramatic drop in sales in Spain, which had an impact on the lease agreements.
After lengthy negotiations to resolve the dispute, our client reached an out-of-court settlement based on a written offer, which rebalanced the affected lease contracts for 2020 and 2021. However, the counterparty is now refusing to comply with this agreement and is demanding that our client pay in full the original rent agreed in the contracts for 2020 and 2021. Our client has therefore filed a lawsuit requesting the court to order the counterparty to comply with all the terms of the out-of-court settlement.
Young lawyers need to constantly stay up to date with developments in healthcare and life sciences
What advice would you give a young lawyer starting out today specializing in healthcare and life sciences?
It is very important to understand the sector and your clients’ needs. The healthcare and life sciences sector is a very different and specialized space; it has its own language and way of doing things. In addition, I would say that it is very important that they continue to stay up to date, not only from a legal perspective but on the situations that are taking place now.
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