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A Washington lawyer succeeded in his defense of a proverbial Goliath client against a David-like opponent in a high-stakes intellectual property case by challenging the plaintiff’s credibility and making the defendant appear to be the plaintiff’s size. Kourosh A. Dastgheib, a Lancaster, Pa.-based ophthamologist, had accused Genentech Inc. of South San Francisco, Calif., the world’s second biggest biotechnology company, of unjust enrichment and fraud claims relating to the development of its blockbuster drug Lucentis, a breakthrough medication for age-related blindness. Dastgheib had alleged that the company relied on his research to develop Lucentis and promised him a cut of the profits and scientific recognition for his work. He claimed that Genentech owed him more than $1 billion in damages � a third of the net present value of the drug’s expected future income stream. Dastgheib v. Genentech Inc., No. 04-1283 (E.D. Pa.) Rather than attempt to stare down David from Goliath’s imposing stature in front of a jury, Kenneth A. Gallo, Genentech’s first trial chair and managing partner of the Washington office of New York-based Paul, Weiss, Rifkind, Wharton & Garrison, brought in Napoleone Ferrara, the Genetech researcher who the company said was the true developer of the drug. “We successfully humanized and personalized Genentech. We identified the scientist who did the research, introduced him to the jury when we did our opening statement and Dastgheib called him as a witness early in the plaintiff’s case,” Gallo said. A risky strategy Gallo crafted Genentech’s defense to make the story hinge on which researcher was telling the truth, so that rather than the case being about Dastgheib taking on Genentech, it was Dastgheib’s word against Ferrara’s. “What we were doing was standing and fighting for our scientists,” Gallo said. But this was a risky strategy, especially facing the renowned and formidable Raymond P. Niro of Niro, Scavone, Haller & Niro, a national plaintiffs’ intellectual property practice based in Chicago, he said. Neither Niro nor his trial second chair, Paul K. Vickery, returned calls for comment. Dastgheib’s case was riding on a billion-dollar unjust enrichment claim. This made it tricky to defend: There is no precise legal standard to define unjust enrichment, which results in vague jury instructions, Gallo said. Genentech’s conundrum was that though Dastgheib had done some research and the company had paid to see his research, its position was that Ferrara and his team were the ones who actually developed Lucentis, and earned the scientific credit for its invention, he said.
TRIAL TIPS • Simplify your story to something that can be told briefly and clearly. • Humanize and personalize a corporate client. • Stick to four or five basic themes through the trial.

The concern was that even if Genentech convinced the jury that it had done most of the heavy lifting in developing the drug, it might also think that the biotech giant easily could afford to pay Dastgheib something for his contribution, Gallo said. “A compromise verdict would have been very bad for Genentech because you could get to hundreds of millions of dollars in a blink of the eye,” he said. Gallo stuck to his strategy of making Ferrara and his team the company’s point men, and he used Dastgheib’s contradictory statements and inconsistent actions with respect to the company to challenge the doctor’s credibility. He also simplified the intricate story of Lucentis’ 20-year development into a clear and brief narrative and he kept returning to four or five basic themes throughout the trial. At the end of the 2 1/2-week trial last November, the jury found for Genentech. The case was a big win for Gallo, but he is no stranger to representing large corporate clients in high-stakes litigation. Last month, Gallo obtained a preliminary injunction in New Jersey state court on behalf of BASF Catalysts LLC, prohibiting Edward T. Wolynic, its former vice president and chief technology officer, from working for Honeywell International Inc. until the expiration of the two-year noncompete period in his employment agreement. After expedited discovery and a three-day hearing on the matter, the court found on May 31 that BASF’s two-year noncompete provision was reasonable in both scope and duration, and that it protected BASF’s legitimate interests. BASF Catalysts LLC v. Wolynic, No. MRS-C-36-07 (Morris Co., N.J., Super. Ct.). In July 2005, Gallo led the defense team that won summary judgment for 42 automotive manufacturers and their suppliers who allegedly infringed a 1993 patent protecting side-impact air-bag sensors. Automotive Technologies International v. BMW North America Inc., No. 2:01-cv-71700 (E.D. Mich.). He also argued the appeal of this decision as lead attorney on the matter for the joint defense group before the U.S. Court of Appeals for the Federal Circuit in Washington last month.

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