[1]In 1995, Beth Jacobson’s late husband, Dr. Ira Wolmer was diagnosed with multiple myeloma; an incurable blood cancer that develops in the bone marrow. Ms. Jacobson, a lawyer, devoted her efforts to identify treatment options for her husband, which led her to request that he be treated with Thalomid, Celgene’s brand name for thalidomide.
While Dr. Wolmer did not respond to treatment and later died, thalidomide has become a major treatment against multiple myeloma and Celgene has grown into a $24 billion company. Jacobson has now brought a lawsuit against the Celgene Corporation (Jacobson v. Celgene Complaint [2]) based on what she claims is Celgene’s misappropriation of her idea for treating multiple myeloma with thalidomide and she wants $300,000,000 plus 25% of future profits.
Multiple myeloma is the second most common blood cancer after non- Hodgkin’s lymphoma impaired production of normal antibodies, increased susceptibility to bacterial infection, and hypercalcemia. Dr. Wolmer was treated at the Myeloma Institute by a team of doctors, led by Dr. Bart Barlogie.
In Ms. Jacobson’s research on alternative treatments, one researcher told her about Dr. Judah Folkman, a researcher at Harvard Medical School who has theorized that cancer may be treated by retarding angiogenesis, the growth of blood vessels that feed tumors. One of the substances under study in Dr. Folkman’s laboratory was thalidomide.
Ms. Jacobson claims that she suggested the idea of using thalidomide to treat her husband’s multiple myeloma because of the similarities she perceived between leukemia and multiple myeloma and that Dr. Folkman told her that he had never thought of the idea. (other versions say that Dr. Folkman suggested thalidomide [3] but he died last year).
After her conversation with Dr. Folkman, Ms. Jacobson got Dr. Barlogie to treat her husband with thalidomide, which was obtained from Celgene. Dr. Barlogie got FDA approval to administer thalidomide to Dr. Wolmer on an experimental basis. Unfortunately, Dr. Wolmer died despite the treatment.
Later, physicians at the Myeloma Institute used thalidomide to treat another patient and this time, thalidomide worked and the patient had a near complete remission. Dr. Barlogie and others then conducted a clinical trial, the results of which were published in the New England Journal of Medicine and showing that “thalidomide had substantial antitumor activity in patients with advanced myeloma.”
The article was dedicated to the memory of Dr. Wolmer and expressly acknowledged Ms. Jacobson’s idea of using thalidomide to treat multiple myeloma and stated that “We are indebted to Beth Wolmer for her persistence in recommending the clinical evaluation of thalidomide in the treatment of multiple myeloma.” In addition, Celgene’s 1999 Annual Report stated that the 1999 clinical trial for the treatment of multiple myeloma with thalidomide along with its publication in the New England Journal of Medicine was a “seminal event in the commercialization of Thalomid.”
It is interesting that the same drug that caused a catastrophe of the 1960’s with many children born with severe birth defects due to their mothers’ use of the drug, is now a miracle drug, helping to alleviate their suffering of illnesses from AIDS to cancer.
Thalomid (thalidomide) and a related drug, Revlimid, generate $2.2 billion a year for Celgene. Ms. Jacobson would now like a big pile of cash claiming the idea of treating multiple myeloma with thalidomide was novel and that no one in the medical community was using the drug for this purpose before Ms. Jacobson’s discovery.
The premise behind the claim of misappropriation of ideas is that when a party misappropriates another person’s confidential idea or some other type of property, the law imposes an obligation on that party to pay the other restitution for its improper use.
Generally, the test for determining whether the law will imply an obligation to pay for a confidentially submitted idea is when “a person communicates a novel idea to another with the intention that the latter may use the idea and compensate him for such use, the other party is liable for such use and must pay compensation if:
(1) the idea was novel;
(2) it was made in confidence to the defendant; and
(3) it was adopted and made use of by the defendant in connection with his own activities.
A misappropriation claim, unlike a contract-based claim, only can arise from the taking of an idea that is original or novel because the law of property does not protect against the appropriation of that which is free and available to all. Anyone may use ideas in the public domain freely.
While Jacobson now claims that she disclosed the information to Celgene on a confidential basis, there is no evidence that anyone agreed to keep any information secret or not to use the information.
Even if there was some sort of implied obligation of confidentiality on Celgene, Jacobson’s pleading states that she told another patient about using thalidomide and that patient asked for and received the drug from the Multiple Myeloma Institute’s staff. Certain the information was available to – if not created in whole or in part by – Folkman and Barlogie.
In addition, all the pertinent information was certainly disclosed on publication of the New England Journal of Medicine article and the Celgene Annual Report. It could be that any novelty of the treatment was lost early on and the information had fallen into the public domain.
We’ll keep you posted on developments.