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Amgen Inc. v. F. Hoffman-La Roche Ltd

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Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.

This is a patent case. Amgen Inc. (“Amgen”) is the owner of U.S. Patent Nos. 5,441,868 (“the ’868 patent”), 5,547,933 (“the ’933 patent”), 5,618,698 (“the ’698 patent”), 5,756,349 (“the ’349 patent”), and 5,955,422 (“the ’422 patent”). The patents relate to the production of the protein erythropoietin (“EPO”) using recombinant deoxyribonucleic acid (“DNA”) technology. All five patents share a common specification and descend from Application No. 06/675,298 (“the ’298 application”), which issued as now-expired U.S. Patent No. 4,703,008 (“the ’008 patent”).

In November of 2005, Amgen brought a declaratory judgment action against F. Hoffman-La Roche Ltd, Roche Diagnostics GMBH, and Hoffman-La Roche Inc. (“Roche”) in the United States District Court for the District of Massachusetts, alleging that Roche’s product, MIRCERA(r), would infringe Amgen’s five patents if imported into the United States. Roche responded with affirmative defenses and counterclaims that Amgen’s asserted patents were invalid and not infringed. In October of 2008, following rulings of summary judgment and judgment as a matter of law (“JMOL”), and a jury trial, the court entered judgment that the ’868, ’933, ’698, and ’422 patents were infringed and not invalid, and that the ’349 patent was neither invalid nor infringed. Amgen, Inc. v. F. Hoffman-La Roche Ltd., No. 05-12237-WGY, slip op. at 1–2 (D. Mass. Oct. 17, 2008) (“Final Judgment”). Accordingly, the court granted Amgen declaratory relief and permanently enjoined Roche from marketing MIRCERA(r) in the United States. Id.

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