Chiron Corp. v. SourceCF Inc.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER BENCH TRIAL

INTRODUCTION

The issue presented is the extent to which cystic fibrosis victims, their parents and their doctors are barred by a medical-method patent asserted by Chiron Corporation from using inhaled tobramycin to treat lung infections. Cystic fibrosis victims, their parents and their physicians have long used inhaled antibiotics to treat lung infections. Tobramycin and nebulizers were known well before the invention in question. Neither was invented by Chiron. A drug-device combination using tobramycin with a particular nebulizer came on the market in 1997. Chiron later acquired it and has successfully marketed the combination as TOBI. It is prior art for purposes of Chiron’s later patent asserted herein.

More efficient and more portable nebulizers have been invented by others. Being more efficient, the new nebulizers can cut the treatment duration at least in half. The shorter treatment duration encourages children to comply with their treatment regimens. The new nebulizers are also small and portable, unlike the heavy TOBI machine. It seems undisputed between the parties that the new generation of nebulizers…