Genentech’s Cabilly II patent, which is directed generally to co-expression of recombinant antibody heavy and light chains in a single host cell, has been subject to a series of lawsuits since it issued in 2001. The Cabilly patent is widely licensed in the industry and is thought to cover most, if not all therapeutic antibodies. A succession of pharmaceutical companies have filed actions seeking declarations that their therapeutic antibodies do not infringe Cabilly II, and/or that it is invalid and unenforceable: MedImmune (product: Synagis®; Centocor (ReoPro® and Remicade®); GlaxoSmithKline (Arzerra®); and Human Genome Sciences (“HGS”) (Benlysta®). MedImmune and Centocor have settled with Genentech for undisclosed terms. Medimmune’s suit went all the way to the Supreme Court on the issue of licensee estoppel, and to the Federal Circuit on MedImmune’s antitrust allegations. Genentech also prevailed on U.S. Patent Office reexamination of Cabilly II. GlaxoSmithKline’s and HGS’s suits are ongoing.
On March 7, 2011 the Federal Trade Commission released a 300-page report addressing the relationship between patent law and competition policy and offering recommendations for improving the patent system. The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition (2011). Dechert’s Antitrust and Intellectual Property Groups have prepared a “Dechert OnPoint” entitled “FTC Recommends Improvements to Patent System” which analyzes the key points of the FTC’s observations and recommendations.