En Banc Second Circuit Reinstates Conviction Despite Government Retention of ESI
Funds Talk: June 2016
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On August 17, 2009, the Honorable James D. Ishmael, Jr., of the Kentucky Circuit Court granted Kramer Levin’s motion for summary judgment ending a lawsuit brought by Dr. Joseph R. Berger against our client Savient Pharmaceuticals. Dr. Berger, chairman of the Department of Neurology at the University of Kentucky College of Medicine, was an inventor on two patents for treating muscle wasting in HIV/AIDS patients. Dr. Berger assigned his patent right to Savient’s predecessor in 1991. In 2007, Dr. Berger claimed that Savient breached its agreement with him when Savient failed to employ Dr. Berger in research studies after 1995. Under Kentucky’s fifteen-year Statute of Limitations, Berger sought the return of his patents and disgorgement of Savient’s profits – over hundreds of millions of dollars.
Through various legal theories, Dr. Berger attempted to introduce parol evidence, including testimony from the Vice President of Savient’s predecessor entity. Kramer Levin, however, successfully opposed the introduction of parol evidence. Based on the four corners of the agreement, the Court found our client did not breach the written agreement. The Court further held that to the extent there was an oral agreement, it was barred by five-year Statute of Limitations for oral agreements.
The Kramer Levin team included Jonathan S. Caplan, William Spatz, Mark Baghdassarian, Aaron Frankel, Marcus A. Colucci and Geoffrey G. Hu.