Rstor & North,
Rstor- great to see you checking in again. Thanks to both of you for providing the pdf of the motion for reconsideration of the summary judgement re infringement on the '414 patent.
The inconsistencies Insmed have identified in the court's claims constructions seem very valid. Claims 1, 2 and 9 are the meat of the whole '414 infringement case. The Court accepted neither Insmed's nor Tercica's proposed claim constructions - but instead ruled that "fusion proteins" are excluded from the Court's own definition of the term "human IGF-1".
The Insmed IGF-1 expression process produces only fusion proteins. Therefore the product of Insmed's process cannot infringe claims 1 or 2, which both claim production of "human IGF-1", despite the ruling in favor of Tercica on "expression" (direct and fusion forms).
Re Claim 9, the process for producing "human IGF-1" and "mature human IGF-1", the Court has ruled that both these terms must refer to bioactive proteins. To my knowledge, neither Genentech nor Tercica appear to have ever produced IGF-1/IGFBP3 complex with demonstrated bioactivity.
Looks to me like the summary judgement of literal infringement for claims 1 & 2 is seriously flawed. Unless Tercica can demonstrate bioactivity for anything Genetech produced, claim 9 infringement seems unlikely too. If I can understand this as a non-lawyer, I bet a jury could too.
The court is either going to have to redefine its own claims limitations, or the summary judgements re claims 1 & 2 of '414 will have to be decided all over again. Sounds like, at the least, a significant delay in the trial. I doubt Tercica wants to go to trial any time soon if the court reverses on the infringement finding on claims 1 & 2 of the '414. And the case on the other two patents ('151 & '287) sounds a lot weaker anyway. The only case I was somewhat concerned about after reading the filings was the '414.
I don't think this reconsideration motion is a minor issue. More time will go by while Tercica & the Court try to figure this one out. Meanwhile, Insmed's sales & progress on alternate indications are moving ahead.
I like the careful path of the Insmed legal team. All they have to do is dilute & delay the Tercica suits. By late 2007/2008, European sales will begin and it simply won't matter much what Tercica is doing in US courts. The scope of Insmed's product development completely outclasses Tercica.
IMO Interesting times & good prospects for Insmed.
cheers
AI
