A Delaware federal judge on Tuesday refused to dismiss a suit by Bristol-Myers Squibb accusing Merck of infringing a patent for its immunotherapy cancer treatment, saying that although the patent is directed to a natural phenomenon, further discovery is needed to determine if it is invalid.
U.S. District Judge Gregory M. Sleet said that the patent covering Bristol-Myers Squibb Co.’s cancer treatment, which uses a patient’s own immune system to eliminate cancer cells by using antibodies that bind to a protein called PD-1, is in fact directed to a natural phenomenon, as Merck and Co. argued. But the judge held that more discovery is needed to determine whether the claims of the patent add enough to the phenomenon to qualify as patent-eligible under the Supreme Court’s precedent.
Merck is represented by Michael P. Kelly, Daniel M. Silver and Benjamin A. Smyth of McCarter & English LLP.