Genetics Institute Inc. said Tuesday that a German court hasruled that Boehringer Mannheim GmbH, GI's European licenseefor erythropoietin, will be preliminarily enjoined frommanufacturing and selling EPO in Germany.
The decision, which was announced after the close of themarket, was the result of a court case brought last June byOrtho Pharmaceutical Corp. against Boehringer. Ortho claimedthat Boehringer was infringing a European patent held byKirin-Amgen Inc. Ortho has licensed European rights to apatent held by Kirin Brewery and Amgen Inc.
The court also ruled that the EPO product sold by Ortho'sEuropean distributor, Cilag GmbH, infringes a European patentheld by Genetics Institute. However, the court didn't issue apreliminary injunction against Cilag.
EPO is used to treat anemia resulting from kidney dialysis.GI (NASDAQ:GENIZ) earned $1 million in royalties onBoehringer's European EPO sales in the first five months of GI'sfiscal year ending Nov. 30.
"It was a surprise to everyone that it was an unequalinjunction," said GI spokeswoman Melinda Lindquist. "We don'tknow why Cilag wasn't enjoined. It's also unusual to enjoinwhen the patents are still in the opposition period."
All of the European patents held by the parties to the disputeare in the opposition period during which their scope andvalidity can be legally challenged in the European patent office.GI has three European patents covering EPO, of which only theearliest, issued in May 1991, is involved in the court's ruling.Amgen has one European patent, issued in July 1990, coveringrecombinant EPO and the process of producing it.
In March 1991, a U.S. appeals court invalidated GI's U.S. patentcovering pure erythropoietin. That decision prohibited GI andits marketing partner, Chugai Pharmaceutical Co. Ltd., frommanufacturing or selling EPO in the U.S. That decision left theU.S. EPO market in the hands of Amgen, which earned $111million on U.S. EPO sales in the first quarter. Amgen(NASDAQ:AMGN) doesn't break out its royalties on Ortho'sEuropean sales. Its stock fell $1.13 to $57.75. -- KarenBernstein
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