Also at Friday's (Feb. 17) conference, the Court is scheduled to consider certiorari in MedImmune, Inc. v. Genentech, Inc., S.Ct. No. 05-608; and MedImmune, Inc. v. Centocor, Inc., S.Ct. No. 05-656. In both cases, plaintiff-petitioner relies upon Lear, Inc. v. Adkins, 395 U.S. 653 (1969), to challenge validity of patents as an unhappy licensee. Unlike Lear, however, the plaintiff-petitioner continues to pay royalties under the patent license, a distinction which led to dismissals in both cases. A decision on certiorari is expected February 21, 2006.
The following AP report is a little hazy on the law (and some facts), but does introduce other factors present in the case.
The U.S. Supreme Court agreed Feb. 21 to hear a case on whether drug-maker MedImmune Inc. has the right to sue rival Genentech Inc. over a lucrative drug patent.
MedImmune claims San Francisco-based Genentech and British biotechnology firm Celltech R&D Ltd. improperly schemed to obtain a patent on antibody technology, allegedly in violation of antitrust laws. MedImmune wants the patent invalidated.
Several companies use manufactured antibodies as the basis of new drugs. In return, the companies pay Genentech licensing fees under patents held by the drug maker known as "Cabilly" after inventor Shmuel Cabilly. That includes MedImmune, which uses antibody technology for the childhood respiratory drug Synagis that topped $1 billion in worldwide sales last year.
Genentech obtained a Cabilly patent in 1989 that was set to expire in 2006. In 2001, it acquired a second patent through negotiations with Celltech, which had a similar antibody patent. The second Cabilly patent runs through 2018.
MedImmune filed an antitrust lawsuit in Los Angeles in 2003, claiming Celltech and Genentech colluded over the second patent. But federal district and appeals courts rejected MedImmune's claims, saying it did not have a right to file suit under federal law.
In October, however, the U.S. Patent and Trademark office rejected the second Cabilly patent but agreed to re-examine its decision, which could be a lengthy process.
The MedImmune case was not on Wegner's "top 10" Supreme Court Patent Cases, as updated on Nov. 29, 2005.