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If you look closely, you’ll see a lot of extra lawyers in the Boston courtroom where Amgen Inc. and Transkaryotic Therapies (TKT) are in a patent fight relating to erythropoietin, a drug that stimulates the production of red blood cells. For the companies involved, the stakes are huge: Estimated 1999 worldwide sales for the drug were $4 billion, with Amgen earning $1.8 billion just for U.S. sales to treat dialysis-related anemia. But other, unrelated parties — ranging from institutional investors to competing biotech firms — are sending legal minions to see how the case might affect their own fortunes. Amgen’s drug, called Epogen, has been on the market since 1989 and is produced by using recombinant genetic engineering. TKT, in collaboration with European pharmaceutical giant Hoechst Marion Roussel, makes its drug using a different technology, known as “gene activation.” Stage III clinical trials for the drug ended in 1999. Amgen filed the infringement suit, Amgen v. Hoechst, No. 97-10814 WGY, in 1997. Two experienced intellectual property litigators lead the legal teams. Lloyd R. “Rusty” Day, of Cupertino, Calif.’s Day Casebeer Madrid & Batchelder, represents Amgen; Herbert F. Schwartz, of New York’s Fish & Neave, represents TKT and Hoechst. Chicago’s Marshall, O’Toole, Gerstein, Murray & Borun and Boston’s Duane, Morris & Heckscher also are representing Amgen, while Boston’s Choate, Hall & Steward is helping TKT. The other lawyers in attendance on a regular basis have no direct involvement in the litigation. Rather, these 15 or so lawyers have clients that are paying them to attend. Donald R. Ware, a partner at Boston’s Foley, Hoag & Eliot, is one of the observers. He wouldn’t identify his client, except to say that it is “a major institutional investor,” and he suggested that the stock market’s volatility may be driving the heavy interest. “The market has become more sensitive to the importance of patent litigation to public companies,” Ware said. Early on in the litigation, he said, U.S. District Court Judge William G. Young made a ruling on one patent claim that favored Amgen. Financial analysts immediately headed for the phones. “And Amgen stock was up about $5 per share by 11 a.m. that day.” Edmund R. Pitcher, a partner at Boston’s Testa, Hurwitz & Thibeault, is attending the trial for New York’s Paine Webber Group Inc. In the past, he said, he’s reviewed various trials’ written proceedings and kept third-party clients informed, but the Amgen case “is the first time I have done this so extensively.” He speculated that some of the lawyers at the trial are there on behalf of biotech companies concerned with TKT’s plans, posted on its Web site — at www.tktx.com/f_technology.htm — to produce “potentially improved versions” of other biotech drugs already on the market. “If I were a company that had a successful biotech drug made by recombinant DNA, and TKT had announced it was going to make the drug by using its gene-activation technology, I would want to know a great deal about this trial,” Pitcher said. The trial is expected to run to mid-July. Both Pitcher and Ware acknowledged that indulging in a little back-seat lawyering is a constant temptation. “It’s hard not to think about how I would do it differently,” Ware said.

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