My opinion and best guess is that Cozen underestimated this part of the process and didn’t take it seriously, This is the easy stuff. Patent litigation can be extremely challenging but that part hasn’t really come yet. The pleading standards are so liberal it is very difficult to have a case dismissed for the reasons this one was dismissed. You really need to be asleep. I think knowing that, Cozen didn’t take it seriously and PM did. Hence the result. I am not saying they cannot overcome this; I am still holding a lot of shares. But they definitely don’t look good, let’s see what they file but it better have a declaration from an expert saying why there is combustion and why the FDA document isn’t to be believed. Otherwise I think Judge Batten would not allow amendment. That’s all they have to do in my opinion. Put in an expert declaration explaining why there is combustion and why the FDA submission doesn’t tell the whole story. The Judge is crediting the FDA document entirely because Cozen attached it to the complaint and has not really credibly explained why the Judge shouldn’t take it at face value. The only way to overcome this in my opinion is with expert testimony. PM used expert testimony to explain why the FDA document should be believed. Cozen presented nothing.
The bigger problem is if HCMC can overcome this, what about the rest of the case. If Cozen keeps this up, there is no shot. patent litigation is hard enough without shooting yourself in the foot constantly. Jeff Holman I am sure is a good lawyer but he is not a patent lawyer and so he cannot possibly know the nuances of this very technical lawyering. There is an entirely separate bar exam for lawyers that procure patents and you cannot even sit for that bar unless you have a science degree, I hope we overcome this but I am worried about the future even if we do.
