Reuters, 06/12/2000 16:49
TKT fights uphill battle after ruling in Amgen suit
By Christopher Noble
BOSTON, June 12 (Reuters) - Biotech giant Amgen still holds the legal high ground in its patent infringement case against rival Transkaryotic Therapies despite an unfavorable ruling on Monday from the judge in the case, most analysts said.
U.S. District Judge William Young made final a tentative ruling from Friday that Transkaryotic Therapies (TKT) (NASDAQ:TKTX) did not infringe Amgen's (NASDAQ:AMGN) patent on its method of producing its billion-dollar, anemia-fighting erythropoietin drug marketed under the brand name Epogen.
The ruling removes that patent and the five legal claims relating to it from the trial. It leaves TKT the task of proving it did not infringe three other Amgen patents, and further, that the one patent the judge already ruled it did infringe is invalid.
Even as they cautioned that the case could still go either way, analysts said this could be a tough task because Amgen only has to prevail on one of the 14 remaining claims and because proving a patent to be invalid requires meeting a high legal standard.
"It puts Transkaryotic in a better position than they were but it doesn't make them any more likely to win on the (claims) that are still out there," said Donna Gitter, a professor of biotechnology patent law at Fordham University.
"They've got a lot of work to support their remaining arguments."
Dennis Harp, an analyst with Deutsche Banc Alex. Brown, said he agreed that TKT had its work cut out for it.
"It only takes a single claim on a single patent to block (TKT's) product from getting to market," he said. "TKT still must deal with the validity of the 422 patent, which they must prove is invalid, and that is a very high standard legally."
In a pretrial ruling, Young said TKT had literally infringed Amgen's patent on EPO, the so-called 422 patent. Now TKT must offer clear and convincing evidence that the patent is either too broad, unenforceable or invalid in some other way.
Infringement claims such as the one Young threw out require only a preponderance of evidence, a lower standard.
The judge's tentative ruling on the issue on Friday boosted TKT's stock by more than $11 as investors rushed to cash in on what looked like a big win for the Cambridge-based firm.
But on Monday, the stock had given up nearly all those gains closed down 9-1/2 points at 33-3/8. Amgen closed off 1-5/8 at 61.
"People misinterpreted the significance of the judge's ruling on Friday," Harp said.
Jonas Alsenas, an analyst with ING Barings, said he disagreed, calling the ruling a major victory for TKT.
"TKT's still got a lot things to do,but on the other hand for the stock to be trading at the same place it was last Thursday makes no sense," Alsenas said. boston.newsroom@reuters.com))
Copyright 2000, Reuters News Service |
