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Renewed flap over AIDS test patent.

The Pasteur Institute of Paris has requested millions of dollars in past and future royalties from the U.S. government on sales of the patented AIDS blood test developed by U.S. and French scientists, according to an American attorney representing the French research center.

The request was made on the grounds that U.S. negotiators misled the French over the timing and sequence of the scientific discoveries that led up to the test's roughly simultaneous development by U.S. National Institutes of Health researcher Robert C. Gallo and Pasteur Institute scientist Luc Montagnier. Those negotiations ended with a 1987 agreement to share the royalties on the AIDS test patent, which have so far totaled roughly $50 million.

The Pasteur Institute's U.S. attorney, Michael Epstein of the New York City law firm Weil, Gotshal & Manges, says his client has not received a response from the U.S. Department of Health and Human Services (HHS) regarding a January request for all of the royalties from sales of the test. He says the Pasteur Institute is "actively considering" filing suit against HHS to resolve the issue.

The French are demanding all of the royalties from the test on the basis of a public admission by Gallo that his laboratory isolated the virus upon which the test is based from samples that had been inadvertently contaminated by a virus in a separate sample sent to him by Montagnier. Gallo admitted the mix-up last summer in a letter published in NATURE. Montagnier has subsequently conceded that he and his colleagues did not know of the existence of that virus and that they based their blood test on another, slightly different virus.

Gallo's attorney, Joseph Onek of the Washington, D.C., law firm Crowell & Moring, contends that the source of the virus used in either the U.S. or the French blood test is irrelevant to the issue of the AIDS test patent. What's important, he says, is who first performed the tricky feat of using proteins from an AIDS virus to detect AIDS antibodies in the blood of infected individuals.

"Nothing has been learned that gives [the French] any justification for changing the settlement," says Onek. "If they want to go to court, let them ... they don't have a case."
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Title Annotation:between French and United States research teams
Publication:Science News
Article Type:Brief Article
Date:Jul 18, 1992
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