mouton29,
Thank you for trying.
I found this,
"Cross Winds in the Safe Harbor: Classen v. Biogen and Momenta v. Amphastar
Two recent Federal Circuit opinions mark out highly divergent views on the scope of the § 271(e)(1) safe harbor of the Hatch Waxman Act. Both cases involve drug companies who used another’s patented invention while developing information to submit to the Food & Drug Administration about an already approved product. In last year’s Classen, a case involving immunization methods, the Federal Circuit panel reversed a district court decision and held that the defendants’ post-approval activities were not protected by the safe harbor. But in this summer’s Momenta, which was litigation between two generic manufacturers, the appellate panel ruled that post-approval activities could indeed be within the safe harbor. The panel vacated the lower court’s preliminary injunction, finding that Amphastar’s ongoing use of Momenta’s patented manufacturing method was noninfringing.
The U.S. Supreme Court has already twice addressed the scope of the safe harbor provision of the Hatch-Waxman Act, in Eli Lilly v. Medtronic (1990) and Merck v. Integra (2005). Recently it requested the solicitor general’s input on a petition for a writ of certiorari on Classen. Our panel, which includes two litigators and the assistant general counsel of a large pharmaceutical company, will discuss the current state of the case law and its future.
Of Note: The panel vacated the lower court’s preliminary injunction, finding that Amphastar’s ongoing use of Momenta’s patented manufacturing method was non infringing.” NOTE THE WORDS ONGOING USE.
That was my take in listening to the court hearing. They continue to use our patent. i.e. why the Judge said it sounded like Amphastar was trying to bootstrap on our patent. MY words they want FREE USE FOREVER!
If we ultimately prevail, that 100M bond should look like chump change on what they will owe us.
