By Bonnie Eslinger

Law360, London (March 27, 2020, 4:42 PM GMT ) A London judge Friday granted Pfizer more time to serve evidence in patent litigation related to a pneumococcal vaccination brought by rival Merck Sharp & Dohme, after Pfizer said one of its experts was called to join an emergency COVID-19 task force in Belgium.

High Court Judge Colin Birss gave Pfizer an extension to provide its expert evidence in the case after counsel for the pharmaceutical giant said both of their experts lived abroad, were of the age most vulnerable for coronavirus and one is an expert in vaccine formulation called to participate on a COVID-19 task force.

"It seems to me that is an excellent reason why the time should be extended," Judge Birss said during Friday's hearing, which was held via online video chat due to the pandemic. "Quite obviously [he] is going to focus on COVID-19 if he is asked to do so and not on this case."

The litigation, brought by Merck, seeks to revoke one of Pfizer's patents linked to a vaccine used to prevent infection caused by pneumococcal bacteria. The invention relates to the formulation of that vaccine to avoid what's known as "silicone-induced aggregation," as silicone is often a component to lubricate the inside of the syringes in which the vaccine is delivered.

Merck's counsel argued during Friday's hearing that Pfizer had been given plenty of time and should have been nearly ready with their evidence before the coronavirus situation had any real impact.

Katherine Moggridge of Three New Square, representing Merck, also maintained that pushing the evidence deadline out increases the risk that the litigation's June trial date could be adjourned.

On Friday, Moggridge acknowledged the significant impact that COVID-19 is having on all aspects of life, but said it was important to try to press on with trial preparation.

"All this uncertainty that lies ahead, rather than justifying the wholesale extension that my learned friend seeks in fact makes it imperative that we all press up and make real efforts to keep as close to the original trial schedule as possible," Moggridge said, later adding, "The proposal that Pfizer suggests ... simply in my submission smacks of using a sledgehammer to crack a nut."

Pfizer's counsel, Lindsay Lane of 8 New Square, bristled at that suggestion, saying her client had good reasons for asking for the extension.

"It is not a nut, god we all wish it were not a nut, my lord if I can put it like that. It is a very serious problem with our experts and the way we're trying to work now, we do need these extensions of time," Lane said.

Judge Birss granted the extension, giving Pfizer until April 17 to provide its evidence and Merck until May 22 for its reply. The trial is set to be heard during the last week of June.

The judge also told the parties to start thinking about whether the trial will be conducted remotely, at least partly, using the sort of technology that the courts are currently employing.

"I know no better than any better than anybody else, how long the restrictions are going to be necessary, but it can't be unforeseeable that we may still need to use technology like this," the judge said.

Pfizer's Prevnar 13 protects against pneumonia and other illnesses and is the company's best-selling vaccine. Merck is in the process of testing a competitor product and Pfizer has counterclaimed for infringement.

Wyeth LLC, which is originally named as the defendant in Merck's litigation, is the registered owner of the patent at issue. Wyeth was acquired by Pfizer in 2009.

The patent-in-suit is European Patent No. 2,676,679.

Merck is represented by Katherine Moggridge of Three New Square, instructed by Hogan Lovells International LLP.

Wyeth is represented by Lindsay Lane of 8 New Square, instructed by Marks & Clerk Law LLP.

The case is Merck Sharp & Dohme Ltd. v Wyeth LLC, case number HP-2019-000005, in the High Court of Justice of England and Wales, Patents Court.

--Editing by Alyssa Miller.

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