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Kite and Juno Continue to Square Off in the Federal Circuit

Gaston Kroub

Despite lingering concerns about the future profitability of Car-T based cancer treatments, there is no doubt that 2017 was a year of great change in the space. From the first FDA-approved product offering to the acquisition of two leading companies, Kite and Juno, by biotech behemoths Gilead and Celgene respectively, 2017 was truly Car-T's year in the sun. While investors in both Kite and Juno were rewarded for their belief in Car-T's commercial potential, it would be a mistake to ignore the ongoing patent dispute between these fierce competitors. 

In particular, the case worth watching at the moment is the appeal that Kite took from a negative result in its attempt to win an inter partes review against Juno's '190 patent. That patent was obviously a concern for Kite, and as long as it remains valid offers Celgene a potential chance to collect royalties from Gilead's Cat-T offering, Yescarta. While briefing on the appeal in the Federal Circuit in nearly over (Case No. 17-1647), the parties are contesting a key issue on whether or not the Federal Circuit should strike portions of Kite's reply brief.

As things go, this might seem like a procedural detour of little concern to the ultimate outcome of the case. But such maneuvers often have a purpose. At minimum, the dispute calls attention to a key argument in the appeal, and provides Juno with two bites at the proverbial appeal. Either they get the Federal Circuit to agree that Kite's argument in its reply brief should be stricken, or they get another chance to highlight what they think is a winning issue for them. Either way, the case continues to bear watching for Celgene and Gilead shareholders.

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