The disputed patent, US6,217,866, covers monoclonal antibodies that are specific to human epidermal growth factor receptor and the therapeutic use of these antibodies. Two of these antibodies were first created by the named inventors on the '866 patent as research tools and a sample was given to the Weizmann scientists, who went on to discover that the antibodies, when used in combination with chemotherapy, had a synergistic tumour-killing effect. The Weizmann scientists produced a draft publication of these findings and sent this to one of the named inventors on the '866 patent, then at Meloy Labs. Meloy labs (which became Rorer and then Aventis), drew up a patent application for the antibodies that included their use with chemotherapy in which only the scientists employed by Meloy or Rorer were named. Meloy/Rorer (and later ImClone) also used text and figures from the Weizmann manuscript in their patent application.
After Yeda sued ImClone for improper ownership of the patent, the US Patent and Trademark Office set out to compare the alleged contributions of each asserted co-inventor to establish whether the correct inventors were named. In its defence, ImClone claimed that the work drawn from the Weizmann draft paper was research that the named inventors had conceived of entirely themselves, and further that they had given the Weizmann scientists directions as to which experiments to perform. However, the court was not convinced by the testimony of one of the named inventors (whose memory of the events was deemed too good to be genuine) and by the lack of documen-tation showing that any of the named inventors even contemplated the experiments performed by the Weizmann scientists and covered by the patent. Moreover, because the court found that ImClone was responsible for Yeda not finding out about its patent applications, it did not allow ImClone to exercise the legal doctrine of laches, which would bar Yeda's claims because the lawsuit was initiated more than 10 years after the patent application was submitted.
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