By Sherri Oslick --
About
Court Report: Each week we will report briefly on recently filed
biotech and pharma cases, and a few interesting cases will be selected
for periodic monitoring.
Jassen, L.P. et al. v. KV Pharmaceutical Co.
3:08-cv-03012; filed June 17, 2008 in the District Court of New Jersey
Infringement of U.S. Patent No. 7,160,559 ("Controlled Release Galantamine Composition," issued January 9, 2007) following a paragraph IV certification as part of KV's filing of an ANDA to manufacture a generic version of Janssen's Razadyne ER® (formerly Reminyl®) (galantamine hydrobromide, used to treat mild to moderate dementia of the Alzheimer's type). View the complaint here.
North Carolina Farmers' Assistance Fund, Inc. v. Monsanto Company et al.
1:08-cv-00409; filed June 17, 2008 in the Middle District of North Carolina
False marking based on Defendants' marking of "Roundup Ready" soybean seeds indicating that these products are covered by the U.S. Patent No. 5,352,605 ("Chimeric Genes for Transforming Plant Cells Using Viral Promoters," issued October 4, 1994). View the complaint here.
After going after numerous small fry with a bazooka, on their home turf rather in the defendant's backyard as the law requires, I'd like nothing better than to see Monsanto get its behind nailed on this. But I don't see how one can argue with a straight face that seeds saved from year to year aren't covered by at least one claim of the patent, which includes claims on transfected plant cells. I give the plaintiffs an A for effort, though.
Posted by: Federally Circuitous | June 24, 2008 at 07:24 AM
Interesting. Claim 4 of the '605 patent-in-suit reads as follows:
4. A plant cell which comprises a chimeric gene that contains a promoter from cauliflower mosaic virus, said promoter selected from the group consisting of a CaMV (35S) promoter and a CaMV (19S) promoter, wherein said promoter is isolated from CaMV protein-encoding DNA sequences, and a structural sequence which is heterologous with respect to the promoter.
Assuming the seeds all contain the construct (which is the basis for the herbicide resistance), it would appear that the seeds would infringe this claim because growing the plant would "make" more plant cells containing the construct.
Curiously, the attorney who signed the complaint appears to be a registered patent attorney, which suggests that an interesting theory may be brewing in this case. The patent bar might appreciate receiving updates on the theory of the case as the lawsuit proceeds.
Posted by: Kevin E. Noonan | June 27, 2008 at 06:21 PM