Re: Question for JSpoonless/Abharploonta
by: JSpoonless (38/M/Atlanta, GA) 04/19/06 09:50 pm
Msg: 87973 of 87973
This touches on several complex legal doctrines. In order to get a US patent, there must have been (1) conception of the idea and (2) reduction to practice (e.g., actually making a product). These two steps must take place prior to filing a patent. The filed patent application must also meet the (1) enablement and written description requirements of the patent law so that "one of ordinary skill in the art" can read the patent application, and undertand it enough to reproduce the ides (e.g., product). I'm not familiar with DNA's development of this technology. I'm also not a biotech type, but if DNA filed patent applications without meeting any one of the above requirements, for example, without reducing the concept/idea to practice, then the patent can be found to be invalid.
Others on this board have suggested that INSM has a good invalidity position based on "prior art" (prior publications known before the date of conception of DNA's patents). This is a better way to invalidate if possible. Just keep in mind, the US courts, in general, presume a patent is valid and that the examiner knew what she/he was doing when she/he allowed the case. IMO, a judge would rather find the scope of claim coverage narrow than to invalidate the claims, although I would prefer the judge to just interpret the claims and compare the claim scope to prior art (i.e., not make an effort to find the claims valid when there is close or invalidating art).
I'm rambling, but there are many complicated issues at work here. As I've said numerous times before, I hope INSM has a strong primary noninfringement position with a good secondary invalidity position. Makes me wonder about the Dow Pharma move recently announced. Is Dow's process better than DNA's? Is Dow's process so different from the patented method claims that Dow's technology does not infringe literally ior under the doctrine of equivalents? Has INSM been using Dow's process from the get-go? If not, did they switch to Dow's technology because they are confident that this process does not infringe? Regardless of the answers and the possibility that the move to Dow's process delays iPLEX product launch, I think the odds of a finding of patent infringement is less today due to the INSM/Dow Pharma collaboration.
Nuff said for now.
