First Martha, Now Imclone’s Patents are Going Away Too

Terry Wright


Imclone Systems Inc. (Imclone), the company whose founder Sam Waksal is currently serving time in prison for the stock scandal that also resulted in Martha Stewart going to prison, has recently lost again.  On Monday, September 18, 2006, U.S. District Court Judge Naomi Reice issued a 140 page opinion that directed the United States Patent and Trademark Office to replace the seven names on the patent for the blockbuster colon cancer drug Erbitux with the names of three Israeli scientists.  According to the court, the Israeli scientists are the true inventors of the drug and the case “was not a close call.”  The Israeli inventors’, who pioneered the research in the late 1980’s, success in the suit was, according to Judge Reice, due to documents, such as laboratory notebooks, that “strongly corroborated” the testimony of their experts and other “credible” witness.

The patent in question, Pat. No. 6,217,866, is entitled “Monoclonal Antibody Specific to Human Epidermal Growth Factor and therapeutic Methods Employing the Same.”  It describes a process by which an antibody, such as the one found in the drug Erbitux, can be combined with chemotherapy to fight the growth of cancer with greater success than with chemotherapeutic agents alone.  Although, the patent in question only protects the process and not the actual antibody itself, Imclone through the loss of this lawsuit has lost all exclusive rights to use the process.

Furthermore, this loss is likely to be only the first in a series of such losses.  In addition to the lawsuit filed in the United States, Yeda Research and Development Co. (the licensing arm of the group of Israeli scientists) has also sued Imclone, which licenses the patent, and Aventis Pharmaceuticals Inc., which owns the patent, in four other countries.  Currently, lawsuits are also pending against patents obtained in England, Germany, France, and Austria.

The Brand will continue to follow these other lawsuits as their rulings become available.  However, as this case shows, if you do research it helps to keep meticulous laboratory notebooks.  They could one day save you from losing your invention.