Amgen Inc. won another battle in its war with Genetics Institute Inc.over erythropoietin (EPO) when a federal judge this week ruled thata 1991 decision upholding Amgen's patent prevented GeneticsInstitute from asserting new claims to the red blood cell producingdrug.

Genetics Institute, of Cambridge, Mass., said it will appeal. Thelatest courtroom confrontation resulted from a lawsuit filed inSeptember 1994 by Amgen, of Thousand Oaks, Calif., seeking tocounter a 1994 U.S. patent issued to Genetics Institute for EPO.

The judge in Boston Tuesday granted Amgen's summary judgmentmotion saying that despite Genetics Institute's new patent, thecompany was bound by the 1991 ruling declaring its EPO claimsinvalid and unenforceable against Amgen.

The federal court decision in Massachusetts also tossed out GeneticInstitute's patent infringement lawsuit in Delaware against Johnson& Johnson subsidiary, Ortho Pharmaceutical Corp., of Raritan, N.J.Ortho licenses rights from Amgen to sell EPO.

The Genetics Institute suit in Delaware was based on an EPO patentit received last June. Amgen responded to that challenge by filing theMassachusetts court action.

The EPO war dates to 1987 when both Genetics Institute and Amgenwere issued U.S. patents. The 1991 federal court ruling that upheldAmgen's patent claims over Genetics Institute also preventedGenetics Institute from selling EPO in the U.S.

Amgen sells EPO in the U.S. and China for treating anemia inkidney disease patients on dialysis. Ortho has rights to sell it in theU.S. for non-dialysis related indications and for all indications inEurope. Amgen licensed EPO to Kirin Brewery Ltd in Japan.

Genetics Institute licensed its EPO product to Germany-basedBoehringer Mannheim GmbH in Europe and to ChugaiPharmaceutical Co. Ltd. in Japan.

The patent fight between Amgen and Genetics Institute is waged inEurope by their licensing partners. Both patents have been upheld bythe European Patent Office and litigation is under way in Europe ona country-by-country basis.

Worldwide sales of EPO are estimated at about $1 billion forAmgen's product and nearly $500 million for Genetics Institute'sversion.

Amgen's stock (NASDAQ:AMGN) closed Wednesday at $65.75,down 12 cents. Genetics Institute (NASDAQ:GENIZ) lost 50 centsto finish at $35. n

-- Charles Craig

(c) 1997 American Health Consultants. All rights reserved.