While some have warned that Biota could be severely handicapped if it were to lose and ordered to pay GSK's costs, Mr Cook says that there was never a doubt that Biota must pursue the case. "There are two products out there, we had the original innovation, we were first into market with GSK. They faffed away all of that and, within five years of launching product, we've got a situation where the second entrant into the market (Tamiflu) holds 96 per cent of the market share," he says. "We licensed the product to these people on the basis that they would use their best endeavours to develop and market and promote that product. I don't call a 4 per cent market share even approximating a reasonable effort, far less best endeavours. "What gave us the courage to tackle GSK? The answer is simple: they destroyed a huge amount of wealth of my shareholders. I had no obligation but to bring this case to them through the court." Cook also sees a moral aspect to Biota's pursuit of GSK, saying that it is in the best interests of people around the world that more than one option is available for treating influenza, particularly in the event of a pandemic similar to the three that in total claimed up to 43 million lives in the 20th century. WHO's Kelso says it is the organisation's preference that both Tamiflu and Relenza remain available. "It can occur that you have a virus sensitive to one (drug) and resistant to the other. It is very important for us to have both." With the trial date for the legal battle a year away from tomorrow, Cook says Biota would have loved to get its product back and license it to "somebody else who would have done a far more champion job with it". GSK says it is "naturally disappointed" to find itself embroiled in this legal fight with its partner but remains confident they can continue to work together. The beginning of the expiry of the patent for Relenza, and thus the partnership, is not until 2013. Colman does not want to take sides in the legal drama unfolding. Yesterday, as the 62-year-old reflected on whether he was disappointed about the fortunes of Relenza, the first Australian flu drug ever to reach the market, he does not give too much away. "From my point of view, we discovered the drug first, we identified the opportunity, we discovered the first molecule of this type. Gilead Sciences in San Francisco found a second one."
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