UNITED STATES DISTRICT COURT FORTHEDISTRICT OF COLUMBIA

ADMINISTRATORS OFTHE TULANE EDUCATIONAL FUND (A/KIA TULANE UNIVERSITY), 

### etal., Plaintiffs,



### v. IPSENPHARMA, S.A.S. (F/KfA SOCIETE CONSEILS DE RECHERCHES ET D'APPLICATIONS SCIENTIFIQUES SAS), Defendant.

# ~.. ) ) ) ) ) ) ) Civil Case No. 09-2428 (RJL) ) ) ) ) ) )

MEMORANDUM OPINION**(December~,** 2011) [#58] Plaintiffs in this case, the Administrators ofthe 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 ofseveral U.S. patentspursuantto 35 U.S.C. § 256. In response to Ipsen Pharma's counterclaims, plaintiffs have brought their own counterclaim against Ipsen Pharma, contendingthat Dr. Coy is the sole inventor ofthe GLP-l Patents. Ipsen Pharma has moved to dismiss plaintiffs' counterclaim for failure to state a claim. Forthe following reasons, the motion to dismiss is GRANTED.

BACKGROUND The facts ofthis case, and the particularpatents at issue, have been amply described in earlier opinions. See Mem. Op., Mar. 14,2011, ECF No. 46; Mem. Op., 1Mar. 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 ofIpsen S.A., is engaged in the business of, among otherthings, holding intellectual property rights for Ipsen S.A., includingthe 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 Coy, Tulane, and Biomeasurewere governedby aResearch Funding Agreement dated July 1, 1984, which was later superseded by an amended Research Funding Agreement ("RFA"). 

### Id.**~~** 15-16, 18. Underits terms, the RFA covered various peptide research and studies conducted by, or underthe supervision and control ofDr. Coy. 

### Id.**~** 17. Tulane and Dr. Coy also agreed

to undertake ajointresearchproject on "glucagon like peptides," or GLP-l analogs. 

### Id.**~** 18. During the relevant time period, Biomeasure and Tulane held routinejoint 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 ofthe '186Patent, and instructed that such analogs should be made 2and tested. Id.**~** 28. Minutes from the UK meeting "reflectBiomeasure's acknowledgementthat substitutions identifiedby 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. Followingthose meetings, Tulane and Biomeasure "jointly implemented Dr. Coy'sideas, and made and tested several GLP-I (7-36) analogs with position 8 and other substitutions." Id.**~** 31. Plaintiffs sued for correction ofinventorship ofthe patent coveringthe BIM-51077 compound, as well as for unfairbusinesspractices, unjust enrichment, and constructive trust under Massachusetts law. With respectto the plaintiffs' claim for correction ofinventorship ofthe patent coveringthe BIM-51077, plaintiffs claimed that Dr. Coy should be named sole inventor or co-inventor ofthe GLP1patents. Id.**~** 61. On March 23, 2011, this Courtheld that although plaintiffs successfully stated a claim forjoint 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 answerto 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 3to 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 ofthe GLP-l patents. PIs.' Countercl.**~~** 20-22. ANALYSIS I. Legal Standard A Court may dismiss all orpart ofa complaintthat "fail[s] to state a claim upon which reliefcan 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 ofwhich [the court] may takejudicial notice." 

## E.E.o.c. v. St. FrancisXavier ParochialSch., 117 F.3d 621,624 (D.C. Cir. 1997). To survive a motion to dismiss made pursuantto Rule 12(b)(6), a complaint must "plead[] factual contentthat allows the courtto draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroftv. Iqbal, 129 S.Ct. 1937, 1949 (2009). In evaluating aRule 12(b)(6) motion, the Court construes the complaint "in favor ofthe plaintiff, who mustbe granted the benefit ofall inferences that

can be derived from the facts alleged." Schuler v. UnitedStates, 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 enoughto raise a right to reliefabove the speculative level." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the Court "need not accept inferences drawn by plaintiffT] ifsuch inferences are unsupported by the facts set out in the complaint. Nor mustthe court accept legal conclusions cast in the

4'.

form offactual allegations." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). II. Claim for Sole Inventorship ofthe GLP-l Patents Ipsen Pharmacontends, as it did in their original complaint, that plaintiffs have failed to state a claim for sole inventorship. See Def.'sMem. in SUpp. ofDef.'sMot. 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 mindthat only ordinary skill wouldbe necessary to reduce the invention to practice, without extensive research or experimentation." Burroughs Wellcome Co. v. BarrLabs. Inc., 40 F.3d 1223, 1228 (Fed. Cir. 1994). In otherwords, the inventor must have "a specific, settled idea, a particular solution to the problem at hand, notjusta 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 ofand disclosed to Biomeasure a genus ofGLP-l analogs that encompasses analogs modified atpositions 8 and 35, which included BIM-51077 (the Taspoglutide compound) as well as specific compounds with substitution atpositions 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 ofGLP-l analogs with modifications at positions 8 and 35, and specific compounds with such substitutions, including BIM-51077. Dr. Coy further instructed Biomeasurethat 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 

### 5within the disclosed genusthat 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.'sMot. to Dismiss at 2-4; CompI.**~~** 28-30; PIs.' CountercI.**~~** 8-1l. Indeed, the substance ofthe two sets of allegations is the same. This Courthas previously dismissedplaintiffs' claim ofsole inventorship becauseplaintiffs failed to sufficiently allege the level ofconception necessary to state such a claim. In its counterclaim, plaintiffs do not offernew allegations to remedy the deficiencies in the Complaint. Specifically, plaintiffs again fail

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

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

6 RICHARD J. EON United States DistrictJudge