UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ADMINISTRA TORS OF THE TULANE 

EDUCATIONAL FUND (A/KIA TULANE 

UNIVERSITY), et al., 

Plaintiffs, 

v. 

IPSEN PHARMA, S.A.S. (F/KfA SOCIETE 

CONSEILS DE RECHERCHES ET 

D' APPLICATIONS SCIENTIFIQUES SAS), 

Defendant. 

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MEMORANDUM OPINION 

(December~, 2011) [#58] 

Plaintiffs in this case, the Administrators of the Tulane Educational Fund (a/k/a 

Tulane University) ("Tulane") and David H. Coy ("Dr. Coy") (collectively, "plaintiffs") 

filed this action against Ipsen Pharma, S.A.S. ("Ipsen Pharma") for correction of 

inventorship of several U.S. patents pursuant to 35 U.S.C. § 256. In response to Ipsen 

Pharma's counterclaims, plaintiffs have brought their own counterclaim against Ipsen 

Pharma, contending that Dr. Coy is the sole inventor of the GLP-l Patents. Ipsen Pharma 

has moved to dismiss plaintiffs' counterclaim for failure to state a claim. For the 

following reasons, the motion to dismiss is GRANTED. 

BACKGROUND 

The facts of this case, and the particular patents at issue, have been amply 

described in earlier opinions. See Mem. Op., Mar. 14,2011, ECF No. 46; Mem. Op., 

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Mar. 23, 2011, ECF No. 50. The following factual recitation, however, relates 

specifically to Ipsen Pharma and the claim that is subject to its motion to dismiss. 

Ipsen Pharma, a subsidiary of Ipsen S.A., is engaged in the business of, among 

other things, holding intellectual property rights for Ipsen S.A., including the GLP-l 

patents. Compl. ~ 12, ECF No.1. Biomeasure is Ipsen Pharma's majority-owned 

subsidiary. Id. ~ 14. 

The initial research collaborations between Dr. Coy, Tulane, and Biomeasure were 

governed by a Research Funding Agreement dated July 1, 1984, which was later 

superseded by an amended Research Funding Agreement ("RF A"). Id. ~~ 15-16, 18. 

Under its terms, the RF A covered various peptide research and studies conducted by, or 

under the supervision and control of Dr. Coy. Id. ~ 17. Tulane and Dr. Coy also agreed 

to undertake a joint research project on "glucagon like peptides," or GLP-l analogs. Id. ~ 

18. 

During the relevant time period, Biomeasure and Tulane held routine joint 

meetings. Id. ~ 25. One was held on October 10, 1997 in the United Kingdom (the "UK 

meeting") and another was held on March 20, 1998 in Milford, Massachusetts (the 

"Milford meeting"). Id. Representatives from Tulane and Biomeasure attended both 

meetings. Id. ~~ 25-26. 

GLP-l analog development was discussed at the UK meeting. Also at that 

meeting, Dr. Coy "specifically described to Biomeasure's researchers the genus ofGLP-l 

analogs that encompasses analogs modified at positions 8 and 35, which includes BIM51077," the subject of the '186 Patent, and instructed that such analogs should be made 

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and tested. Id. ~ 28. Minutes from the UK meeting "reflect Biomeasure's 

acknowledgement that substitutions identified by Dr. Coy were unique and likely 

patentable." Id. ~ 29. 

At the Milford meeting approximately six months later, Tulane and Biomeasure 

researchers "again discussed current data on various GLP-I analogs being made and 

tested in cell assays, and how substitutions at various positions affected activity. They 

also reviewed pharmaceutical profiles for treating non-insulin dependent (type II) 

diabetes [] with GLP-I analogs." Id. ~ 30. 

Following those meetings, Tulane and Biomeasure "jointly implemented Dr. 

Coy's ideas, and made and tested several GLP-I (7-36) analogs with position 8 and other 

substitutions." Id. ~ 31. Plaintiffs sued for correction of inventorship of the patent 

covering the BIM-51 077 compound, as well as for unfair business practices, unjust 

enrichment, and constructive trust under Massachusetts law. With respect to the 

plaintiffs' claim for correction of inventors hip of the patent covering the BIM-51077, 

plaintiffs claimed that Dr. Coy should be named sole inventor or co-inventor of the GLP1 patents. Id. ~ 61. On March 23, 2011, this Court held that although plaintiffs 

successfully stated a claim for joint inventorship, plaintiffs failed to allege the level of 

conception necessary to state a claim for sole inventorship. See Mem. Op., Mar. 23, 

2011, ECF No. 50. 

On April 7, 2011, Ipsen Pharma filed an answer to plaintiffs' complaint, as well as 

its counterclaims. See Def.'s Answer to Comp!., Apr. 7,2011, ECF No. 51. Plaintiffs 

responded with their own counterclaim. See Pis.' Answer, Defenses, and Counterclaim 

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to Def.'s Counterclaim ("PIs.' Countercl."), May 2, 2011, ECF No. 55. In their 

counterclaim, plaintiffs again claim that Dr. Coy should be named sole inventor of the 

GLP-l patents. PIs.' Countercl. ~~ 20-22. 

ANALYSIS 

I. Legal Standard 

A Court may dismiss all or part of a complaint that "fail[s] to state a claim upon 

which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to 

dismiss, the Court may only consider "the facts alleged in the complaint, any documents 

either attached to or incorporated in the complaint and matters of which [the court] may 

take judicial notice." E.E.o.c. v. St. Francis Xavier Parochial Sch., 117 F.3d 621,624 

(D.C. Cir. 1997). To survive a motion to dismiss made pursuant to Rule 12(b)(6), a 

complaint must "plead[] factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 

S.Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6) motion, the Court construes the 

complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that 

can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. 

Cir. 1979) (internal quotation marks omitted). However, factual allegations, even though 

assumed to be true, must still "be enough to raise a right to relief above the speculative 

level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the Court 

"need not accept inferences drawn by plaintiffT] if such inferences are unsupported by the 

facts set out in the complaint. Nor must the court accept legal conclusions cast in the 

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form of factual allegations." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. 

Cir. 1994). 

II. Claim for Sole Inventorship of the GLP-l Patents 

Ipsen Pharma contends, as it did in their original complaint, that plaintiffs have 

failed to state a claim for sole inventorship. See Def.'s Mem. in SUpp. ofDef.'s Mot. to 

Dismiss ("Def.'s Mot. to Dismiss") at 1. Inventorship requires conception, which is 

"complete only when the idea is so clearly defined in the inventor's mind that only 

ordinary skill would be necessary to reduce the invention to practice, without extensive 

research or experimentation." Burroughs Wellcome Co. v. Barr Labs. Inc., 40 F.3d 1223, 

1228 (Fed. Cir. 1994). In other words, the inventor must have "a specific, settled idea, a 

particular solution to the problem at hand, not just a general goal or research plan he 

hopes to pursue." ld. (citations omitted). 

To support their claim for sole inventorship, plaintiffs allege that "Dr. Coy 

conceived of and disclosed to Biomeasure a genus of GLP-l analogs that encompasses 

analogs modified at positions 8 and 35, which included BIM-51077 (the Taspoglutide 

compound) as well as specific compounds with substitution at positions 8 and 35 like 

those in BIM-51077." Pls.'s Counterclaim ~ 8. Plaintiffs further allege that "Dr. Coy 

specifically described to Biomeasure and its researchers the genus of GLP-l analogs with 

modifications at positions 8 and 35, and specific compounds with such substitutions, 

including BIM-51 077. Dr. Coy further instructed Biomeasure that such substitution 

analogs should be made." ld. ~ 9. The Complaint also alleges that in 1998, "Dr. Coy 

reviewed with Biomeasure and its researchers current data on specific GLP-l analogs 

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within the disclosed genus that had been made, and how substitutions at various positions 

affected activity and stability." Id. ~ 11. 

Except for a few minor and inconsequential changes, the allegations in plaintiffs' 

counterclaim are identical to those in plaintiffs' Complaint. See Def. 's Mot. to Dismiss at 

2-4; CompI. ~~ 28-30; PIs.' CountercI. ~~ 8-1l. Indeed, the substance of the two sets of 

allegations is the same. This Court has previously dismissed plaintiffs' claim of sole 

inventorship because plaintiffs failed to sufficiently allege the level of conception 

necessary to state such a claim. In its counterclaim, plaintiffs do not offer new 

allegations to remedy the deficiencies in the Complaint. Specifically, plaintiffs again fail 

to allege that the idea for the genus of GLP-l analogs encompassed by the patents at issue 

was "so clearly defined" that only ordinary skill would be necessary to reduce the 

invention to practice. See Burroughs Wellcome, 40 F.3d at 1228. Thus, plaintiffs' 

renewed claim for sole inventorship must also be dismissed. 

CONCLUSION 

For all the foregoing reasons, Ipsen Pharma's Motion to Dismiss [#58] is hereby 

GRANTED. An appropriate order shall accompany this memorandum opinion. 

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RICHARD J. EON 

United States District Judge