The American Type Culture Collection on Tuesday filed afriend-of-the-court brief urging the U.S. Supreme Court toreview a lower court decision between Amgen Inc. andGenetics Institute Inc. over the anti-anemia drugerythropoietin.
"The filing of amicus briefs enhances the chances of theSupreme Court taking the case immensely," said Albert P.Halluin, an attorney at Fliesler, Dubb, Meyer & Lovejoy in SanFrancisco who filed the brief on behalf of the ATCC. Halluin,who chairs the Committee on Biotechnology of the AmericanIntellectual Property Law Association, said the court willdecide whether to hear GI's petition by October or November.
The non-profit ATCC of Rockville, Md., acts as a publicdepository for biological cultures and genetic materials.
GI of Cambridge, Mass., in July petitioned the high court toreview a federal appeals court ruling that invalidated GI's EPOpatent, while upholding Amgen's.
GI's petition claims Thousand Oaks, Calif.-based Amgen failedthe disclosure tests of patent law because it didn't deposit thetype of host cells that constitute its best mode for producingEPO. Amgen was allowed to fulfill the requirement bydescribing best mode instead of depositing its cell line.
The ATCC, which is not taking a side in the case, argues thatrequiring deposits of cell lines saves taxpayers millions ofdollars because scientists working under federal grants don'thave to reproduce biocultures from scratch.
At least two other amicus briefs have been filed, Halluin said.A joint brief from several AIDS groups argues that anythingthat impedes research in genetic engineering will have anadverse effect on them. And a scholars brief filed by severalprofessors argues that the lower court decision alters thebargain struck by Congress giving inventors a 17-yearmonopoly in exchange for full disclosure of their inventions.
Al Hillman, a partner at Townsend & Townsend in SanFrancisco, said there's some logic to the idea that the courtmight take a closer look at a case if a diverse group ofinstitutions expressed interest in it. "They don't take manypatent cases, so you're fighting long odds," he said. "But it'spositive if you have (an amicus brief) rather than negative."
-- Karen Bernstein BioWorld Staff
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