<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report June 20, 1996
---------------------------------
(Date of earliest event reported)
NeXstar Pharmaceuticals, Inc.
-----------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-23012 84-1173453
- --------------------------------------------------------------------------------
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
2860 Wilderness Place Boulder, CO 80301
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code: (303)444-5893
-----------------------------
NA
- --------------------------------------------------------------------------------
<PAGE> 2
Item 5. Other Events
On May 17, 1993, the Registrant filed a complaint in the United States
District Court for the District of Delaware against The Liposome Company ("TLC")
asking the court to declare U.S. Patent No. 4,880,635 (the "TLC '635 Patent")
owned by TLC invalid, unenforceable and not infringed following allegations by
TLC that the freeze drying of AmBisome infringes the TLC '635 Patent. In
addition, the Registrant has opposed the grant to TLC of the European and
Japanese patents that are counterparts of the TLC '635 Patent. On December 20,
1993, the United States District Court for the District of Delaware stayed the
May 17, 1993 lawsuit pending the outcome of a reexamination of the TLC '635
Patent instituted by TLC in the U.S. Patent and Trademark Office ("USPTO").
Upon reexamination, the USPTO refused to confirm any of the claims of the TLC
'635 Patent in their original form. However, on June 6, 1996, TLC publicly
stated that it had been informed by the USPTO that certain amended claims would
be allowed and that, when a reexamination certificate issues in respect of such
claims, TLC intends to file a counterclaim against the Registrant for damages
and an injunction based on infringement of the reexamined patent.
Upon review of the claims to be included in the reexamination
certificate relating to the TLC '635 Patent, the Registrant has concluded that
no valid claim should be found to be infringed by the Registrant. In addition,
the Registrant believes that TLC's efforts in crafting claims to avoid prior
liposome work reported by others has presented the Registrant with additional
avenues of defense in any litigation. For example, because of the amendments
made to the TLC '635 Patent during reexamination, the Registrant would also have
a defense based upon the doctrine of "intervening rights." This doctrine would
provide a clear defense to any damage claim for any Registrant activity prior to
the actual issuance of the reexamined patent and would empower the court to
permit the Registrant to continue its activities to the extent and under such
terms as the court deems equitable for the protection of investments made by
Registrant prior to issuance of the reexamination certificate.
However, were the court to determine that the TLC '635 Patent is both
valid and infringed as a result of the freeze drying of AmBisome, the
Registrant could be enjoined from using its method of manufacturing and/or
could be required to pay damages. In such event, the Registrant could
experience interruption in its ability to produce AmBisome and/or incur
significant royalty obligations. In addition, the expense of litigation is
expected to be significant regardless of the outcome.
Although the Registrant has been successful in its recent litigation
with TLC regarding a different freeze-drying patent, past success is not a
predictor of success in the future and in general adverse results in litigation
could have a material adverse effect on the Registrant.
Certain statements set forth above with respect to the litigation and
potential litigation with TLC constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. Such
statements involve known and unknown risks, uncertainties and other factors
which may cause the actual results of the litigation to be materially different
from the results expressed or implied by such forward-looking statements. Such
factors include, among other things: (i) adverse facts adduced in discovery or
at trial; (ii) contrary conclusions of law by the court; (iii) the court
refusing to exercise its equitable powers in a manner favorable to the
Registrant; and (iv) other uncertainties of litigation.
<PAGE> 3
Item 7. Financial Statements and Exhibits
None
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NeXstar Pharmaceuticals, Inc.
By: /s/ PATRICK J. MAHAFFY
--------------------------------
Patrick J. Mahaffy
President
Dated: June 20, 1996
