A Diagnostics & Imaging Week

Third Wave Technologies (Madison, Wisconsin) reported that Stratagene (La Jolla, California) has posted a $21 million bond with the U.S. District Court for the Western District of Wisconsin in Third Wave's name that secures the damages and attorneys' fees awarded to the company in its successful patent infringement suit against Stratagene.

"The $21 million bond is posted with the federal court in Third Wave's name and ensures that [we] will be able to recover the award for Stratagene's willful infringement of our patents, pending successful resolution of the appeal," said Kevin Conroy, president and CEO of Third Wave. "Stratagene's bond is backed by the Travelers Casualty and Surety Co. and represents a commitment that we believe is outside the reach of Stratagene's creditors. We expect the appeal process to take fewer than 18 months and believe we have a strong position on appeal."

A federal jury last fall found that that Stratagene infringed two key Third Wave patents covering its proprietary molecular methods. The jury also has found Strata-gene liable for willful patent infringement, originally set at $5.3 million in damages (Diagnostics & Imaging Week, Sept. 8, 2005).

The judge overseeing the case tripled the damages awarded to Third Wave to $15.9 million and ruled that Stratagene must pay Third Wave's attorney fees, in an amount to be determined by the court, as a result of the willful infringement (D&IW, Dec. 22, 2005).

The judge in late September also entered a permanent injunction that prohibits Stratagene from making, selling or offering to sell its FullVelocity QPCR and QRT-PCR products and any other products that practice Third Wave's patented Invader methods.

Third Wave is focused on the development and marketing of molecular diagnostics for a variety of DNA and RNA analysis applications.

Advanced Magnetics (Cambridge, Massachusetts) reported that a lawsuit has been filed against it by Cytogen (Princeton, New Jersey) in Massachusetts Superior Court.

The complaint includes claims of breach of contract, breach of implied covenant of good faith and fair dealing, fraudulent misrepresentation and unjust enrichment related to a license and marketing agreement entered into in August 2000 in which Advanced Magnetics granted Cytogen certain rights to Combidex and to ferumoxytol for oncology imaging applications.

Advanced Magnetics said that the lawsuit "has no merit" and that it will conduct a vigorous defense against the claims. It said also that the litigation will not "materially distract" it from bringing both ferumoxytol "as an intravenous iron replacement therapeutic and Combidex as an MRI contrast agent to market."

Both companies were hurt last year as a result of an FDA panel vote recommending against the approval of Combidex. That thumbs-down damaged shares of Advanced Magnetics by two-thirds and halved the stock of Cytogen.

The agency's Oncologic Drugs Advisory Committee cited insufficient clinical data for the product and voted 15-4 against supporting a broad indication for Combidex.

Cytogen had been drawing up plans to market the diagnostic product according to its agreement with Advanced Magnetics.

A final FDA decision on Combidex is expected this quarter.

The two companies in 2000 had made plans to merge, but it then scrapped that deal and formed the marketing, license and supply agreement for Advanced Magnetics' imaging agents instead (D& IW, Aug. 1, 2000).

Advanced Magnetics develops superparamagnetic iron oxide nanoparticles used in pharmaceutical products and imaging agents to aid in the diagnosis of cardiovascular disease and cancer.

In other legalities, The Birmingham News has reported that Richard Scrushy, former CEO of HealthSouth (Birmingham, Alabama), paid the pastor of Believers Temple Church in Birmingham to generate sympathy for him during his trial for fraud.

Pastor Herman Henderson told the newspaper that he arranged for Scrushy to speak in black churches and hauled supporters to the courthouse. He also says an associate wrote friendly articles about Scrushy's trial that appeared in The Birmingham Times, part of the BlackPressUSA Network

Scrushy has responded that while money did "change hands," these donations were legitimate and that he never agreed to pay Henderson for help with his legal problems. He contends Henderson is shaking him down.

The report says that Scrushy's charitable foundation paid Henderson's church $25,000 from March to September 2005, and that Scrushy paid $20,000 to the Lewis Group for marketing and public relations. The Lewis Group paid $5,000 apiece to Henderson and Audrey Lewis, who says that the articles she wrote for the Times were "approved" by Scrushy before they were published.

Scrushy says he only reviewed the articles for their accuracy. He also claims he didn't know up-front that the Lewis Group had paid Henderson and that he put a stop to it once he learned of the arrangement.

Government prosecutors reportedly have said that the accusations will not bring any new charges against Scrushy.

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