ImClone intimidated key witness, court rules

By Kirsty Barnes

- Last updated on GMT

Related tags: Law

ImClone has been found guilty of intimidating a key witness in an
ongoing patent infringement case with Repligen and the
Massachusetts Institute of Technology (MIT), over its lucrative
cancer drug.

A US District Court found that two of ImClone's legal counsel - one in-house and external - "violated Massachusetts Rules of Professional Conduct that prohibits lawyers from unlawfully obstructing access to evidence or otherwise engaging in conduct that is prejudicial to the administration of justice,"​ said a statement released by Repligen. This was done with the intention to block the cooperation of a key witness - Dr Stephen Gillies, who invented the patented technology but now works for Merck & Co. - ruled the court. "These actions prejudiced Repligen and MIT from fully prosecuting their case."​ Yesterday the in-house lawyer in question was barred by the court from any further access to, or use of, confidential information in this case and was also prohibited ImClone from any further communication with the witness or his employer regarding this case without permission from the court. Of its own will, ImClone has gone a step further and replaced its entire in-house and external counsel. As a form of compensation Repligen and MIT have been awarded "reasonable"​ attorney fees and costs along with permission "to introduce evidence of the improper conduct of ImClone's attorneys at trial to lay the foundation for the jury to infer that ImClone itself believed that the witness's testimony supported Repligen's and MIT's claims in the litigation,"​ said Repligen. The trial will now take place on September 10, 2007. The dispute between the firms first kicked off in May 2004 when Repligen and MIT filed a joint legal action against ImClone with the accusation that the cell line that ImClone uses to produce Erbitux employs MIT's patented technology, which covers the use of certain genetic elements that increase protein production in a mammalian cells. Erbitux (cetuximab) is a monoclonal antibody drug used to treat people with cancer of the large bowel (colon and rectum). Repligen is involved in the legal battle because it holds the exclusive license to the patented technology. Both organisations are seeking damages against ImClone which could turn out to be substantial - the firm has previously reported that it produced around $1bn (€0.75m) worth of Erbitux prior to the expiration of the patent-in-suit in 2004 and that Bristol-Myers Squibb, ImClone's commercial partner in the US, has paid $900m in license fees as well as a 39 per cent royalty on the net sales of Erbitux in the US to the total of $1.5bn to date. Meanwhile, the two plaintiffs are also separately applying to the US Patent and Trademark Office to have the term of the patent-in-suit extended until May 2009.

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