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BOSTON-Kenyon & Kenyon faces sanctions, including the possibility of removal from a case, for alleged witness intimidation in a high-stakes federal patent case involving the Massachusetts Institute of Technology, ImClone Systems Inc. and Repligen Corp. The case, MIT v. ImClone Systems Inc., No. 04-10884 (MA), involves potential damages of hundreds of millions of dollars if New York-based ImClone is found to have infringed a cell line patent assigned to MIT and licensed to Repligen. ImClone allegedly used the technology to create its colon cancer drug Erbitux. At an Aug. 25 hearing at U.S. district court in Boston, Judge Richard G. Stearns will consider whether to disqualify New York-based intellectual property law firm Kenyon & Kenyon from the case. “The court is of the tentative view that the allegations of ethical misconduct are extremely serious and that the conduct of defendant’s counsel may have prejudiced the ability of MIT to fully litigate its complaint,” wrote the judge in his July 24 memo. Stearns called the documents in the case “the most disturbing pleadings I have received in some time. “I do not see this much invectiveness actually in criminal cases, or this much accusatory language as both sides used in describing the other’s conduct,” said the judge at the oral arguments held in May. At the oral arguments, Fish & Richardson lawyers representing MIT and Repligen alleged that a Kenyon attorney intimidated a star witness in a deposition. The lawyer asked scientist Stephen Gillies, who was one of the inventors of the cell line, questions about his authority to conduct testing for Waltham, Mass.-based Repligen and his employer’s knowledge of his involvement in the case during a deposition. Gillies, who is now an employee at Merck & Co., helped develop the technology while he was at MIT. The university then licensed the technology to a Repligen predecessor company where Gillies previously worked. Fish & Richardson fears that Gillies, who is not under contract as an official expert witness, may lose the incentive to cooperate. “We can’t get him not to be afraid now that he will lose his job if he fully cooperates with us, which is what he was doing beforehand,” said Fish & Richardson attorney Juanita Brooks at the oral argument. Fish & Richardson is also complaining about an e-mail sent by an ImClone in-house attorney to a Merck lawyer questioning Merck’s involvement in the case. Merck and ImClone are adversaries in separate litigation in New York. In oral arguments, Kenyon lawyer Paul Richter Jr. said Gillies and his lawyers did not raise objections during the deposition. Richter also said his questions were designed to find out who else at Merck knew about the testing, since the results could affect damages claims and ImClone might want to call other Merck employees as witnesses at trial. In a brief telephone interview, Kenyon lawyer George Badenoch said that the firm disputes the charges made by Fish & Richardson. “Obviously we disagree, but we don’t want to go into any detail,” Badenoch said. A July 28 summary judgment rejected ImClone’s claim that MIT and Repligen exhausted their rights to the cell line by giving a research and development license to the National Cancer Institute. Hearings to remove a lawyer are unusual, but are the byproduct of over-zealousness in big cases, said John Hanify of Boston-based Hanify & King, who is not involved in the case. “These complex and heavily contested cases, unfortunately, are more likely to involve these kinds of accusations,” he said.

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