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Canadian Court Issues Injunction Ordering AlCana to Return Tekmira Documents, Information


By Doug Macron

Tekmira Pharmaceuticals this week scored a victory in its technology-misappropriation lawsuit against Alnylam Pharmaceuticals and AlCana Technologies, announcing that a British Columbia court has granted its request for an injunction ordering AlCana to return confidential documents and materials to Tekmira in advance of a trial.

The injunction also orders AlCana to disclose “every person and corporation to whom the information was provided or communicated,” Tekmira said.

The legal row began last March when Tekmira sued partner Alnylam for allegedly misappropriating and misusing trade secrets related to its lipid nanoparticle delivery technology (GSN 3/17/2011).

Tekmira alleges that it disclosed confidential information to Alnylam as part of an ongoing alliance under which Alnylam uses Tekmira's lipid nanoparticles with certain of its siRNA-based drug candidates.

However, “Alnylam abused its collaborator status and access to [the] confidential information by improperly using this information for its own internal purposes and to replicate a competing technology in ways that were unauthorized and without our consent,” Tekmira President and CEO Mark Murray said during a conference call held at the time.

“Alnylam repeatedly went so far as to use our proprietary delivery technology to apply for patents based on our confidential information, claiming as its own the very technology that it stole,” he said.

Among the technologies that Tekmira alleges Alnylam “stole” is the so-called MC3 lipid, which Alnylam is using with its phase I hypercholesterolemia drug ALN-PCS.

A few months later, Tekmira expanded its suit to include AlCana, a Canadian startup that has been working closely with Alnylam since being spun out of the University of British Columbia in 2010 (GSN 6/09/2011).

According to Tekmira's suit, AlCana “is an instrument of Alnylam,” used to “escape the licensing and royalty obligations of [its arrangement with Tekmira] and to acquire exclusive rights to Tekmira confidential information, including trade secrets, depriving Tekmira both of royalty streams and the right to use [its] own confidential information … for its own purposes.”

Alnylam has maintained in court filings that its relationship with AlCana represents an effort to maintain ties with key investigators whose employment with Tekmira was “abruptly terminated” after the company re-organized from its previous incarnation as Protiva Biotherapeutics, which was also an Alnylam collaborator.

“Dismayed by the terminations and fearing the loss of access to the expertise of these individuals, Alnylam entered into consulting agreements with the scientists after they were terminated by Tekmira,” Alnylam said in a court filing last year. “These scientists went on to form a new company, AlCana, which worked closely with the University of British Columbia.”

In its suit, however, Tekmira charges that the AlCana scientists who were let go as part of the corporate reorganization had all signed non-compete agreements, which were violated when they began working with Alnylam directly.

“In all relevant aspects, AlCana (a name that is a contraction of Alnylam Canada) … operates for the benefit of Alnylam,” Tekmira charged. “Alnylam funded and orchestrated the creation of AlCana, pays the salaries of AlCana's employees, funds AlCana's research, controls AlCana's patenting activities … dictates decisions on ownership of AlCana's purported inventions, and makes itself the exclusive licensee of any AlCana purported inventions.”

Last November, Tekmira filed a notice of civil claim in the Supreme Court of British Columbia alleging that “certain individuals” from AlCana wrongly took “thousands of confidential documents” containing Tekmira information and trade secrets (GSN 11/17/2011).

Tekmira said this week that during the course of producing documents for the discovery phase of its suit with Alnylam and AlCana, it discovered that “over 12,000 documents containing [its] confidential information and trade secrets were downloaded from [its] electronic document-management system ... and used by AlCana to produce lipids belonging to Tekmira, including the lipid MC3.”

As a result, it filed a request with the court for the return of the documents and related materials.

This week, Tekmira got its wish when the Supreme Court of British Columbia ordered “a pre-trial mandatory injunction ordering [certain AlCana officials] … to surrender and deliver up to [Tekmira] all of the downloaded documents, confidential e-mails, or any other document whether paper, digital, or otherwise.”

According to the court order, the defendants must sign affidavits that list: all of the documents, information, and material taken by them from Tekmira; every individual and company to whom they were provided and communicated; and the products or patents that were in whole or in part derived from the taken documents, information, and material.

The court also ordered the AlCana officials to verify that the documents, information, and material taken from Tekmira have either been returned or destroyed.

Lastly, the court ordered a pre-trial injunction “restraining, enjoining, and prohibiting the defendants … or anyone on their behalf …. from either using or disclosing … any of the downloaded documents and confidential e-mails” unless otherwise specifically permitted under agreements between Tekmira, Alnylam, AlCana, and the University of British Columbia.

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