Kligman lawyers also claim victory

Despite an early ruling in the University's favor, attorneys for the inventor and manufacturer of "miracle" wrinkle-control drug Retin-A are claiming a victory in their court battle with the University over the patent rights to the medicine. A federal judge ruled Tuesday that he would not throw out the University's case for control of the drug as the drug's producer, Johnson and Johnson Baby Products Company, and Retin-A's inventor, University Emeritus Dermatology Professor Albert Kligman, had asked. But the attorney for Johnson and Johnson and Kligman, Ellen Martin, said yesterday the judge painted a very negative picture of the University's case in his decision. The University has been battling with Johnson and Johnson and Kligman since last year over the lucrative rights to the drug. Whomever holds the patent rights to Retin-A is expected to earn untold millions of dollars if the Federal Drug Administration approves the wrinkle cream for over-the-counter sales in the U.S. The University's lawyers have contended throughout the case that Kligman was bound by the University's internal patent policy when he developed Retin-A. They maintain he violated this policy when he sold the Retin-A rights to a subsidiary of Johnson and Johnson in 1986. Attorneys for Johnson and Johnson and Kligman have asserted that Kligman is not bound by the policy. Martin said it was a very optimistic sign for her case that the judge described the University's case at one point as "scant". Martin said the judge was close to dismissing the case even considering only the University's side, much of which she contends is inaccurate. When the judge is presented with the other side, the University will certainly lose, Martin said. In order for the judge to dismiss the University's suit, he must determine that no reasonable jury could ever in any way find in favor of the University. "We tried to hit a home run, and we hit a triple," said Martin of the denied motion. The lawyer for the University, Associate General Counsel Neil Hamburg, responded to Martin's metaphor by saying, "They lost . . . a triple doesn't score a run." Hamburg would not comment on the judge's view of the University's case, saying only that the University gained a great deal from the judge's decision because the judge refused to prevent a jury trial. "The point of [Johnson and Johnson and Kligman's] motion was to take the case away from the jury," said Hamburg. "We are looking forward to a trial by a jury."

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