As previously noted, Genentech was issued a third "Cabilly" patent on April 12. On the day of issuance, Human Genome Sciences filed suit in Delaware seeking declaratory judgment of patent invalidity and non-infringement by its Benlysta® lupus treatment. On that same day, Genentech filed suit in the Central District of California against HGS and GlaxoSmithKline for infringement of Cabilly III by Benlysta®, as well as GSK’s Arzerra® anti-CD20 antibody treatment for chronic lymphocytic leukemia.
Now begins the battle to determine whether Cabilly III is litigated in Delaware or California. Genentech fired the first salvo yesterday by moving to dismiss or stay HGS’s Delaware case. Genentech argues that it filed first—albeit earlier on the same day. It also argues that there would be various judicial efficiencies if the California court takes jurisdiction. Genentech is also attempting to remove HGS’s Cabilly II Delaware patent and antitrust actions to California. We’ll wait to see HGS’s response to this latest motion, and whether it counters by moving to dismiss Genentech’s California case. If HGS’s Cabilly III case sticks in Delaware, it will be interesting down the line to see whether the Delaware and California courts make any inconsistent rulings in the Cabilly II and Cabilly III matters.