After Repligen, Abbott Suing ImClone Systems for Erbitux

Abbott Laboratories has sued ImClone Systems alleging that ImClone’s Erbitux infringes Abbott’s patented method for creating antibodies. Abbott further added that the infringed patent covers “enhancer sequences” that stimulate the expression of a gene for the C225 antibody. Erbitux is used for the treatment of colon-cancer and last year generated U.S. sales of $ 652.2 million. However, a separate infringement lawsuit is pending in the U.S. District Court for the District of Massachusetts over a related U.S. Patent No. 4,663,281 (the ‘281 patent) brought by Repligen Corp. and the Massachusetts Institute of Technology on May 04, 2004. Repligen and MIT, in their complaint, alleged that ImClone’s production of Erbitux infringes the ‘281 patent covering certain genetic elements that increase protein production in a mammalian cell. The ‘281 patent is assigned to MIT and exclusivity licensed to Repligen. On July 28, 2006 the court issued a Summary Judgment ruling in favor of Repligen and MIT and rejected ImClone defense of patent exhaustion in the lawsuit. The Court found that neither the transfer to the National Cancer Institute (NCI) by Repligen’s predecessor (Damon Biotech) nor the subsequent transfer to ImClone by the NCI exhausted the proprietary rights of Repligen and MIT. The Court’s ruling eliminated patent exhaustion arguments as a potential defense for ImClone at trial.