http://www.nytimes.com/2009/08/07/busin ... sis&st=cse
Partners Behind an MS Drug Take Their Dispute to Court
By ANDREW POLLACK
Published: August 6, 2009
Two longtime biotechnology partners, Biogen Idec and Elan, are fighting over the rights to their big-selling multiple sclerosis drug Tysabri.
Biogen sent a letter to Elan on July 28, threatening to end the collaboration and to take full control of the drug as early as Sept. 26. It says Elan violated terms of the collaboration by entering a recent deal with Johnson & Johnson.
Elan, in turn, filed a lawsuit in federal court in New York on Thursday asking the judge to rule that Elan is not in violation of the agreement and that Biogen cannot terminate the collaboration.
“Elan was left with no alternative but to seek court intervention to protect its interest,” the company said in a statement.
Both companies are counting on Tysabri for growth, and neither could afford to lose it. Sales grew 27 percent in the second quarter and are on track to surpass $1 billion this year.
Sales have been held back by Tysabri’s association with a rare side effect — a potentially lethal brain infection — that caused the drug to be temporarily withdrawn from the market a few years ago.
Shares of Biogen, of Cambridge, Mass., fell 97 cents on Thursday, to $46.65. Shares of Elan, based in Ireland, fell 37 cents, or nearly 5 percent, to $7.64.
Under the terms of the nine-year-old collaboration, if either Biogen or Elan were acquired, the other company would have the right to buy full control of Tysabri.
That could be important because the financier Carl C. Icahn, who has pushed for Biogen to be sold, won two seats on Biogen’s board in June.
Elan, a relatively small and unprofitable company, would be hard pressed to buy Biogen’s stake in Tysabri by itself. So it recently gave the pharmaceutical giant Johnson & Johnson the option to finance such a transaction. If Johnson & Johnson did lend Elan the money, it would end up owning 50 percent of Tysabri.
The option was an initially undisclosed part of a broader deal announced last month for Johnson & Johnson to buy 18.4 percent of Elan and a share of the Irish company’s experimental drugs to treat Alzheimer’s disease.
The deal with Johnson & Johnson could discourage companies from acquiring Biogen because it raises the chances that Tysabri would be lost.
In seeking to end the collaboration, Biogen says that Elan has effectively given Johnson & Johnson the right to buy Biogen’s stake in Tysabri. That would violate the collaboration agreement, which forbids transferring any rights to a third party without consent of the other partner.
“They did not seek our prior consent,” said Naomi Aoki, a spokeswoman for Biogen. “We learned about the portion of its deal that concerns Tysabri from media reports the day before they disclosed it on an earnings call.”
Elan says the deal does not violate the collaboration agreement because Elan would be the acquirer of Biogen’s stake. Only later would it sell half to Johnson & Johnson.