Reviewing the BTGC/Genentech lawsuit ll.georgetown.edu
the allegation that Genentech did not rightfully own the patent was one of the arguments that the court considered in deciding the suit:
BTG also argues that the inventors named in the asserted patents did not actually conceive the inventions claimed therein. BTG again cites evidence that the district court found inadmissible, and BTG has not shown that the court's evidentiary ruling was erroneous. Thus, we reject this argument.
BTG further argues that Genentech "misappropriated inventions, materials, people and information" from the University of California ("UC"), and that the asserted patents are unenforceable because Genentech did not disclose its "misappropriation" to the United States
Patent and Trademark Office during patent prosecution. We disagree. The district court found that BTG's witness on this issue, Dr. Goodman, gave testimony that "was at best inconclusive and entitled to no weight" and that he "did not provide any probative testimony in support of the allegation that Genentech misappropriated the inventions, or indeed, anything at all, from UC." On appeal, BTG has not shown that the district court erred in evaluating the credibility of Goodman's testimony. BTG addresses the Administrative Law Judge's findings in the ITC case; however, these arguments do not show error in the district court's findings.
BTG also argues that the unclean hands doctrine bars Genentech's infringement counterclaim, because Genentech allegedly violated the ITC's discovery orders and "misappropriated" the '980
and '832 inventions from scientists at the University of California. Again, we must disagree. These assertions are largely without evidentiary support in the record. In addition, as the district
court found, the purported misconduct did not occur in the context of the present lawsuit. Thus, the court did not err in rejecting BTG's unclean hands defense. See Warner Bros., Inc. v. Gay
Toys, Inc., 724 F.2d 327, 334 (2d Cir. 1983) ("[T]he defense of unclean hands applies only with respect to the right in suit.").
We therefore conclude that BTG has not shown that the district court clearly erred in finding that Genentech established a reasonable likelihood of success on the merits of its infringement
counterclaim.
After reading all this it's not clear to me that a negative finding for Genentech would result in BTGC being allowed to import Biotropin into the U.S.. I'm thinking the way to play this news would be to short GNE rather (with a PE of about 50 it seems vulnerable even without a costly lawsuit progress) than to long BTGC. Other opinions?
When does the Genentech patent expire anyway? |
