Momenta Pharmaceuticals, Inc. (MNTA)

[biopearl]

Below is an excerpt from Teva's argument (a footnote) for cert of April 4th, the reference kindly and patiently provided by mouton. It acknowledges that:


<<The ’808 patent is not the type of patent for which Congress specifically authorized limited
injunctive relief as an infringement remedy because the ’808 patent claims a method of
manufacturing a drug, not the drug itself or the use of the drug. 35 U.S.C. § 271(e)(2), (e)(4).
Because the ’808 patent is the only patent-in-suit that will still be in force between May 2014 and
September 2015, respondents had the right—and every incentive—to raise in the District Court the
same arguments about the supposed lack of irreparable harm during that period that they now
advance in their opposition. They did not do so. >>

So while Sandoz did not make the lack irreparable harm argument as noted toward the end of the footnote, Teva itself acknowledges that the '808 patent is a process patent and not of the type Congress authorized as an exclusion beyond the expiring Orange Book patents, correct? Is this not a major weakness for Teva? Even if the SC deals with the indefinite question and even if it deals with the average vs. peak molecular weight issue, is it not still true that Hatch Waxman just doesn't allow for "limited injunctive relief as an infringement remedy because the '808 patent claims a method.." In other words its a process patent. Is it silly to be optimistic here? bp