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Glaxo Group Limited v. Genentech

July 13, 2010

GLAXO GROUP LIMITED AND GLAXOSMITHKLINE LLC, PLAINTIFFS,
v.
GENENTECH, INC., AND CITY OF HOPE, DEFENDANTS.
GENENTECH, INC., AND CITY OF HOPE, COUNTER-PLAINTIFFS,
v.
GLAXO GROUP LIMITED AND GLAXOSMITHKLINE LLC, COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Mariana R. Pfaelzer

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW RE: MOTION TO DISQUALIFY COUNSEL FOR PLAINTIFFS

By order dated June 15, 2010, the Court granted the motion of Defendants Genentech, Inc., and City of Hope ("Defendants") to disqualify the Howrey firm, counsel for Plaintiffs Glaxo Group Ltd. and GlaxoSmithKline LLC ("GSK"), from representing GSK in this action. The Court further ordered Howrey to refrain from handing over its work product to successor counsel until further order of the Court. The Court directed Defendants to prepare a proposed Statement of Uncontroverted Facts and Conclusions of Law, to be submitted to the Court by June 25, 2010. Plaintiffs objected to Defendants' Proposed Statement of Uncontroverted Facts and Conclusions of Law. In consideration of Plaintiffs' objections, the Court amends Plaintiffs' Proposed Statement of Uncontroverted Facts and Conclusions of Law.

Now, pursuant to the Court's order and Local Rule 52-3, the following Statement of Uncontroverted Facts and Conclusions of Law proposed by Genentech and amended by the Court, together with the reasons stated in the Court's Order of June 15, 2010, shall constitute the Findings and Conclusions of the Court in support of its Order of Disqualification.

Statement of Uncontroverted Facts

1. On April 3, 1983, Shmuel Cabilly et al. filed a patent application that issued on March 28, 1989, as U.S. Patent No. 4,816,567 (the "Cabilly I patent").

2. The Cabilly I patent was assigned to Defendants.

3. The Cabilly I patent concerns genetically engineered monoclonal antibodies that can be used for the treatment of cancer, among other things.

4. On February 8, 1984, the predecessor in interest to Chiron Corp. filed a patent application that, with continuation applications filed in 1985, 1986, and 1995, ultimately issued on April 25, 2000, as U.S. Patent No. 6,054,561 (the "Ring patent").

5. The Ring patent concerns monoclonal antibodies for use in cancer treatments, among other things.

6. The initial application for the Ring patent cites Cabilly I as relevant prior art.

7. On June 10, 1988, Shmuel Cabilly et al. filed a patent application that issued on December 18, 2001, as U.S. Patent No. 6,331,415 (the "Cabilly II patent").

8. As a continuation of the Cabilly I patent, the Cabilly II patent shares a specification with the Cabilly I patent.

9. In February 1991, the U.S. Patent and Trademark Office ("PTO") Board of Patent Appeals and Interferences (the "BPAI") declared a patent interference between the pending Cabilly II application and U.S. Patent No. 4,816,397 (the "Boss patent"), owned by Celltech Therapeutics Ltd. ("Celltech"). Defendants copied claims from the Boss patent, as is standard practice, to initiate the proceeding to determine whether the Boss inventors or the Cabilly inventors were entitled to priority for the inventions claimed in the respective patent and patent application.

10. In August 1998, the BPAI found that the Boss inventors were entitled to priority over the Cabilly inventors.

11. In October 1998, Defendant Genentech Inc. ("Genentech") filed an action pursuant to 35 U.S.C. § 146 against Celltech to appeal the BPAI decision awarding priority to the Boss patent (the "Celltech case").

12. On June 7, 2000, Chiron Corp. filed an action against Genentech alleging that Genentech's breast cancer treatment, Herceptin, infringed ...


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