CellPro Inc. said Wednesday that it has sued BaxterInternational Inc., Baxter Healthcare Corp. and Becton Dickinsonand Co. in a dispute over technology for stem cell separation.
The complaint, filed Tuesday in U.S. District Court in Seattle,alleges that three patents exclusively licensed to BectonDickinson and sublicensed to Baxter are invalid, unenforceableand not infringed. The suit also charges that Baxter and B-Dhave violated antitrust laws and laws prohibiting unfaircompetition. The complaint seeks actual and punitive damages.
CellPro shares (NASDAQ:CPRO) rose $1 to $10.50.
CellPro has completed Phase I/II trials of its stem cellconcentrator in cancer patients and plans to begin Phase IIItrials in May. The technology removes stem cells from bonemarrow by collecting the cells that bear the CD34 markermolecule on their surface. These cells, which can reproduce thebody's immune system cells, can then be returned to patientsfollowing chemotherapy. The technology is also being tested foruse in gene therapy.
"Our rapid progress in human clinical trials has accelerated thenecessity for challenging these patents in order to bring abouta rapid and final resolution of this matter," said CellProPresident Richard Murdock.
Baxter is about to begin trials of its bone marrow purificationprocess in 10 patients with pediatric lymphoma, according tospokesman Jeffrey Fenton. The trials will be directed by theinventor of the patents, Dr. Curt Civin of Johns HopkinsUniversity.
The patents -- No. 4,714,680, issued December 1987; No.4,965,204, issued October 1990; and No. 5,035,994, issued July1991 -- describe the CD34 monoclonal antibody used toseparate stem cells from bone marrow cells or other blood cells,and methods of isolating the cells.
Civin assigned the patents to Johns Hopkins, which licensed thetechnology to B-D for therapeutic, diagnostic and research uses.B-D sublicensed therapeutic uses to Baxter in October 1990.
CellPro alleges that the patents are invalid and thereforeunenforceable because the applications omitted certain factsand references relating to prior art and obviousness.
The Bothell, Wash., company entered into negotiations with B-Din December 1991 to license research uses of the technology.CellPro alleges in the suit that Baxter interfered with thenegotiations by asserting to B-D that CellPro could only obtain alicense through Baxter. B-D then refused to license the systemto CellPro, according to the complaint.
CellPro in January also began discussions with Baxter afterBaxter offered to provide a non-exclusive license in exchangefor an up-front payment and royalties, according tocorrespondence included in the suit.
In April, Baxter told CellPro it was no longer interested in asimple licensing arrangement and instead suggested thatCellPro grant Baxter exclusive distribution rights for CellPro'sproducts in Europe and Japan; non-exclusive rights in the U.S.,Canada and Mexico; and certain other terms.
At that point, Murdock told BioWorld, the company decided tosue. "We felt that eventually we would be ending up in courtand we wanted the home court advantage for a jury trial," hesaid.
The actions of Baxter and B-D, according to CellPro, constitutean attempt to monopolize the U.S. market and to extend thescope of the U.S. rights to geographical areas not covered by thepatents.
Baxter of Deerfield, Ill., will review the suit before decidingwhat action to take, said Fenton. "We feel we have a verystrong patent position," he said.
The company has been negotiating with the other majorplayers in the stem cell separation area, including SyStemixInc. (NASDAQ:STMX) and Applied Immune Sciences Inc.(NASDAQ:AISX), but none have licensed the technology, Fentonsaid.
Becton Dickinson officials didn't return calls.
AISX jumped $1.63 to $16 on Wednesday; SyStemix was down25 cents to $27.
-- Karen Bernstein BioWorld Staff
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