Skin drug battle will go to court

and MATTHEW SELMAN The battle over the lucrative patent rights to the skin drug Retin-A will take place in a jury trial, despite extensive legal efforts by a pharmaceuticals company to block the University's claim for the drug, according to a U.S. District Court order released this week. Judge Jay Waldman ordered Monday that the the court dispute over wrinkle drug Retin-A between the University and Johnson and Johnson Baby Products Company enter the trial pool in November. A case entered into the trial pool in November could lead to a trial date within "several months," according to University attorneys. The University filed suit against Dermatology Emeritus Professor Albert Kligman and Johnson and Johnson in January 1990, asserting control of the "miracle" acne and wrinkle drug's patent and a share of its royalties. The judge's order, filed last Friday in the federal court of the Eastern District of Pennsylvania, also requires discovery -- or collection of evidence -- to be completed by September 20 so that the case can enter the trial pool by November 4. It may take several months for a judge to begin a case placed in his trial pool. Attorneys for both the University and Kligman and Johnson and Johnson delcined to comment on the implications of Waldman's order, saying that they have not yet fully considered the statement. Associate General Counsel for the University Neil Hamburg said Tuesday that "the University is studying the judge's order." In a decision handed down last April, Waldman ruled that he would not throw out the University's case for Retin-A, denying a motion by Kligman and Johnson and Johnson to dismiss the suit. "The point of [Kligman and Johnson and Johnson's] motion was to take the case away from the jury," said Hamburg last April. "We are looking forward to a trial by a jury." The legal battle over the rights to Retin-A has been complex and drawn out, as the controller of the drug's rights could garner profits of untold millions of dollars. The University has argued in the past that "miracle" acne drug Retin-A, which was developed at the University in 1967 by Kligman, falls under the University's Patent Policy of 1966 as property of the University. The University alleges that Kligman violated this policy in 1986 when he sold the patents to the Vitamin A acid to Ortho Pharmaceuticals Corporation, a division of Johnson and Johnson. Attorneys for Kligman and Johnson and Johnson have contended they have control of the patent rights because Kligman never signed the University patent policy, thus allowing him to sell the rights. It is unknown exactly how much money Johnson and Johnson has made from the sale of Retin-A, but a 60 Minutes report which aired last year reported that Johnson and Johnson earned over $100 million before February 1990.

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