Chiron Corp. v. Genentech, Inc.

MEMORANDUM AND ORDER RE: WILLFUL INFRINGEMENT

In a separate, order, the court has determined that Genentech’s product, Hereep-tin, infringes Chiron’s U.S. Patent No. 6,054,561 (“ ’561 patent”). Genentech now moves for summary judgment on Chiron’s allegations of the willfulness of the infringement.

I. Factual and Procedural Background

The ’561 patent claims monoclonal antibodies that bind to a human breast cancer antigen known as HER2. In an order filed concurrently herewith, the court has found that Herceptin, a breast cancer drug composed of anti-HER2 monoclonal antibodies, infringes the ’561 patent. (See Mem. and Order Re: Infringement.) The court has also concluded that questions of the patent’s validity cannot be resolved on summary judgment. (See Mem. and Order Re: Priority, Anticipation.)

Genentech developed Herceptin in the early 1990s and has been selling it in the United States since 1998. (Cook Dep. at 41; Johnston Decl. ¶ 4.) The ’561 patent issued to Chiron on April 25, 2000. (’561 Patent.) Shortly thereafter, Chiron contacted Genentech and asserted that Her-ceptin infringed the patent. (Johnston Decl. ¶¶ 9, 10.) The parties entered into a litigation standstill…