Insmed Inc (INSM)

[smallinvestor]

favorite argument in Bunsow response:

The application that became the ’414 patent was filed in June 1983. Consequently, under the
new patent term, it should have expired in 2003. For a patent filed prior to 1996, however, § 154(c)(1),
provides for a term which is the greater of 20 years from filing or 17 years from issuance. But when
this extension is in effect, §§ 283 (injunction), 284(damages), and 285(attorney fees) of the patent
statute do not apply to one who commenced or made substantial investment in the infringing acts prior
to 1996. Id. at 154(c)(2). Insmed and its predecessors are within this exception and cannot be enjoined
for infringement of the ’414 patent. (TT 1756-1763, 1957.)
The same limiting provision will apply to the ’287 patent after March 22, 2008— little more
than a year from now. When the one year notice provision of 21 U.S.C. § 360bb(b) is taken into
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account, neither an injunction nor damages are available for the ’414 and ’287 patents. (Id.)