EPO case expected to close this week

Testimony will resume on Wednesday in the erythropoietin patent infringement lawsuit between Amgen (AMGN) and Transkaryotic Therapies (TKTX), following a scheduling conference held on Tuesday. The trial had been on hold since the end of July pending the availability of AMGN patent attorney Michael Borun, who will be called as a witness by attorneys for TKTX and partner Aventis (AVE). Borun's testimony may bear on broad aspects of the trial, including claims of inequitable conduct on AMGN's part in prosecuting its EPO patents, as well as on the validity of the patents and whether AMGN intentionally left out human cells from its claims.

The last action taken in the case, being heard in the U.S. District Court for the District of Massachusetts, was Judge William Young's decision not to rule on two AMGN motions for judgement of validity of the remaining patents in the suit and judgement of infringement by TKTX (see BioCentury, July 24). However, Young did find that TKTX had not met its burden of proof on arguments that AMGN's EPO patents lack novelty and obviousness, in effect ruling that the patents are not invalid due to prior art. Nevertheless, he left the door open to defense arguments of invalidity due to indefiniteness, enablement and written description. ...