Judge allows Retin-A suit to continue

The University jumped a major hurdle in their legal battle for the patent rights to the lucrative wrinkle-control drug Retin-A in federal court yesterday. A federal judge refused to throw out the University's case yesterday, ruling against a motion by the drug's manufacturer and inventor urging him to do so. The University filed suit against the inventor, Dermatology Professor Emeritus Albert Kligman, and producer, Johnson and Johnson Baby Products Company last year. The suit claims that the University owns the patent rights to the drug, asserting Kligman illegally sold them to Johnson and Johnson's subsidiary Ortho Pharmaceuticals. The University's complaint demands control of Retin-A and a asks for a share of its royalties. Kligman and Johnson and Johnson filed a motion to dismiss the University's case last year, but U.S. District Court Judge Jay Waldman denied the motion in a 39-page written decision which was released yesterday. In reaching his decision, Waldman said that he could not rule out the possibility that a jury would find in favor of the University if the case went to trial. The University's lawyer in the case, Associate General Counsel Neil Hamburg, said yesterday that he was "delighted" by the decision, adding that it was a substantial victory for the University. "We believe that this decision is a vindication of the University's right to enforce its patent policy," Hamburg said. "We expect to be further vindicated by a jury in this case. The attorney for Kligman and Johnson and Johnson, Thomas Morrison, said he could not comment on the decision because he had not yet had time to look it over. Both lawyers said they did not know if the ruling would lead directly to a jury trial or what the next step in the case would be. The judge also ruled that the University did not file its challenge of the Retin-A patent rights in time to sue Johnson and Johnson for punitive damages. But Associate General Counsel Neil Hamburg said he was not as concerned about the punitive damages ruling because the University was successful in "the largest part of the case." Retin-A has been heralded as a "miracle drug" due to its skin healing properties, and has the potential to earn untold millions of dollars for whomever holds its patent rights. Currently, the U.S. Food and Drug Administration has not approved Retin-A for over-the-counter sales, but the drug may be prescribed by physicians and is available outside the United States. The University's lawyers have maintainted throughout the case that the University controls all patent right to inventions by professors it employs, according to the University's patent policy. The University alleges that Kligman violated the policy when he sold the patents to Ortho Pharmaceuticals in 1986. Attorneys for Kligman and Johnson and Johnson have repeatedly said that because Kligman never signed a written contract with the University, the University's policy is not binding. Hamburg said that the judge's decision is important because "the University is in the business of advancing society through research, and the money the University obtains under its patent policy will go back into research for the betterment of society." It is unknown how much money that Johnson and Johnson has made from the sale of Retin-A, but a 60 Minutes report which ran last year said that Johnson and Johnson has made over $100 million before February 1990.

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