In a high-stakes patent fight between two top pharma players, Bristol-Myers Squibb came up victorious last month when a jury ordered rival Gilead Sciences to pay $752 million for CAR-T patent infringement. But now, Bristol is asking for more—a lot more—based on the “egregiousness” of the infringement.
After a trial in early December, the jury found that Gilead’s Kite Pharma stepped on a patent BMS’ Juno Therapeutics had licensed from researchers at Sloan Kettering and the Memorial Sloan Kettering Cancer Center. The jury ordered Kite, now part of Gilead, to pay $752 million in damages. That number was calculated based on a $585 million upfront fee and a royalty on sales to date.
In a post-trial motion this week, BMS argued that the damages should be higher. For its part, Kite moved for a judgment in its favor or a new trial.
BMS, which last year bought Celgene and with it CAR-T developer Juno Therapeutics, argued that Kite’s “egregious, willful infringement warrants a punitive award in the same amount as the compensatory award."
The drugmaker further pleaded for the court to expand the original damages verdict based on new sales disclosures from Gilead and asked for an ongoing post-trial royalty award.
To back its argument, BMS pointed to “false and misleading” testimony at trial by former Kite CEO Arie Belldegrun that the company wasn't interested in licensing the patent from Juno, and that it wasn’t worried about infringing the patent. Kite’s earlier actions contradicted both of those statements, BMS said.
Further, BMS cited the severity and length of the infringement, plus the size of Gilead, among other factors supporting its argument for the punitive damages. On "litigation misconduct," BMS said Kite lawyers purposely used a wrong verdict form sent out by court staff in order to seek a mistrial.
In its own post-trial motion, Kite moved for a judgment in its favor based on arguments the patent was invalid and that the allegations aren’t supported by the facts. The patent in question “fatally" claims more than its inventor, Michel Sadelain, actually invented, Gilead says.
“Had Dr. Sadelain claimed only what he actually invented, there would be no case—Yescarta is different than what Dr. Sadelain made,” the court filing says.
If the court doesn’t deliver a judgment in Gilead's favor, then it should order a new trial, the company argued, because the “verdict was against the clear weight of the evidence” and the award was “excessive,” among other reasons.
Juno originally sued in 2017, arguing Kite “copied and is now commercializing" the cancer therapy that incorporates technology invented and patented by scientists at Sloan Kettering. Juno exclusively licensed the '190 patent from Sloan Kettering and the Memorial Sloan Kettering Cancer Center in November 2013, the lawsuit said.
Before that licensing deal, back in 2007, a scientific collaborator with Kite named Steven Rosenberg posed some questions to Sadelain, the suit said. Based on Rosenberg's position as a National Cancer Institute researcher, Sadelain referred his fellow scientist to a 2002 journal article that discussed the patent.
Rosenberg and other Kite collaborators then copied that work in the early stages of their efforts to make Yescarta, Juno alleged.
Gilead maintains that Kite “independently developed Yescarta and assumed all of the risk in its discovery and development,” so it doesn’t believe any damages are appropriate. The company is “steadfast” that the patent is “not infringed and is invalid.”