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The Federal Circuit on September 5, 2019, held that Genentech, a biotechnology company, didn’t infringe Phigenix’s patent for a breast cancer treatment. Phigenix, Inc. v. Genentech, Inc., Fed. Cir., 17-02617, 9/5/19.

Phigenix alleged that Genentech’s Kadcyla drug infringed its patent related to preventing breast cancer with a composition that inhibits or enhances the expression of certain genes. While the case was still before the district court, Phigenix narrowed its infringement claims to the population of Kadcyla patients who had been treated exclusively with trastuzumab and a taxane; those patients only accounted for 4% of the total population of Kadcyla patients.

The district court granted summary judgment in favor of Genentech, and the Federal Circuit affirmed, noting that Phigenix failed to provide sufficient notice of its narrowed theory of infringement—and that the failure “deprived Genentech [of] a timely disclosure of this new theory, as well as any potential accommodation in the case schedule the court would entertain.”