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A federal judge has ordered a French drug company to pay $32.6 million in attorney fees for vexatious conduct in patent litigation against Bristol-Myers Squibb Co. Southern District of New York Judge Robert P. Patterson said last week that Rhone-Poulenc Rorer Inc., which became Aventis after merging with Hoechst Marion Roussel of Germany, “defiled the temple of justice” by obstructing depositions and discovery, instructing a witness not to answer questions at a deposition and advancing baseless claims. In January, Patterson ruled that Rhone-Poulenc had intentionally withheld information from the U.S. Patent Office to obtain overly broad patents on methods for making Taxol, a drug used to treat cancer. After obtaining the patents, Rhone-Poulenc demanded royalties from Bristol-Myers for its sale of Taxol. Negotiations between the companies broke down, the court said, leading to what is now nearly seven years of litigation. Donald R. Dunner of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C., one of the attorneys who represented Rhone-Poulenc in the fee proceedings, said Patterson’s January ruling is on appeal at the U.S. Court of Appeals for the Federal Circuit in Washington. He said he could not comment on the fee ruling because he had yet to speak to his client about it. Thomas H. Beck of New York-based Fitzpatrick, Cella, Harper & Scinto, who represented Bristol-Myers, requested attorney and paralegal fees of $20.7 million, the reasonableness of which Rhone-Poulenc did not contest. The firm also requested $6.2 million to cover disbursements and $2.6 million in expert witness fees. Patterson said that both parties recognized that 35 U.S.C. � 285, which allows courts to award attorney fees in exceptional cases, does not explicitly authorize courts to award expert witness fees beyond the statutory amounts provided in 28 U.S.C. � 1821. Under � 1821, Bristol-Myers would have been entitled to about $48,000 in expert witness fees. But Judge Patterson invoked his inherent authority to sanction litigants for bad faith. He also ordered Rhone-Poulenc to pay the requested disbursement fees and $3.1 million in prejudgment interest. The judge wrote in Bristol-Myers Squibb Company v. Rhone-Poulenc Rorer Inc., 95 Civ. 8833, that Rhone-Poulenc’s fraud on the Patent Office, coupled with its numerous abuses of the judicial process, justified the total award. The judge cited five chief abuses by Rhone-Poulenc: the company’s instruction to a patent counsel not to answer certain questions about a scientific article explaining the Taxol creation process; baseless claims involving attorney-client privilege; baseless claims that communications between inventors and in-house patent agents were privileged; baseless claims about the applicability of French secrecy law; and the company’s delay in producing key documents. Doris Johnson Hines of Finnegan Henderson also handled the litigation over fees. Philip E. Roux of Clifford Chance Rogers & Wells represented Rhone at trial.

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