Epogen 1: TKT’s Malpractice Weakens Defense

February 7, 2000

Previously, patent lawyers retained by Verdict believed that TKT’s patents did not appear to infringe on Amgen’s patents. But I cautioned subscribers that this prediction was “guarded” because most of the court documents are sealed and the only documents available were the patents themselves.

The Boston attorneys representing Hoechst and TKT mistakenly sent Amgen’s lawyers 200 privileged documents (a total of 3,821 pages) from the files of Hoechst’s in-house lawyers.  The judge held this week that the privilege covering these documents had been waived stating “it would be unjust to reward such gross negligence (by TKT’s lawyers) by providing relief from waiver.” This is an amusing local legal scandal because the law firm representing Hoescht and TKT is an old line Boston firm.

I am trying to get copies of the documents to determine how much they help Amgen. I suspect the documents must be damaging because the judges’ remarks in the opinion clearly makes the law firm’s malpractice insurance carrier liable. Amgen is almost surely going to benefit from this inadvertent disclosure no matter what the merits were previously.  My earlier prediction that Amgen’s patents were not infringed is now very much in doubt. Until I learn something more substantive about the documents, my guess would be that TKT and Hoecst will now be forced to settle on Amgen’s terms.