In June 2009, a federal jury in Marshall, Texas, found that Abbot Laboratories infringed a patent jointly issued to Johnson & Johnson’s Centocor unit and New York University.
Robert Wood Johnson, a New England druggist, went in business with his brothers, James Wood Johnson and Edward Mead Johnson. They began making medical dressings in 1886 in New Brunswick, New Jersey. Today, Johnson & Johnson is internationally known to be one of the largest and the most diversified health care firms. They operate in three business segments: pharmaceuticals, medical diagnostics and devices, as well as the consumer business segment.
The jury found that Abbott Laboratories owed Johnson & Johnson $504 million in patent royalties based on the sales of Abbott’s Humira arthritis drug and an additional $1.17 billion for decreased sales of Johnson & Johnson’s competing treatments. An additional $175.6 million was later added by the trial judge for interest, bringing the total judgment to $1.84 billion.
In early November, Abbott’s lawyers appeared in the Court of Appeals for the Federal Circuit to argue that the judgment should be overturned, at least on the basis that the underlying patent issued to New York University and Johnson & Johnson’s Centocor unit is invalid. Abbott’s contention is in part that Johnson & Johnson’s patent doesn’t cover the human antibodies used in Humira and that it is invalid because scientists in 1994 (the date set as the time of invention by the court) could not make fully human antibodies in a laboratory against TNF, supporting the argument that no one could claim an invention because no one knew it even existed. (TNF is the abbreviation for Tumor Necrosis Factor and it has been found that too much TNF in the body causes the immune system to attack healthy tissue that leads to inflammation. Humira blocks action of TNF, which causes the inflammation.)
While the size of the judgment in the Abbott case is unusual, Abbott’s defense is not. Whether a patent infringement verdict is worth $1 million or $100 million, defendants in patent infringement cases will almost always attack the validity of the plaintiff’s underlying patent. Whether Abbot will succeed is something we will likely not know for some time.