as always, top notch work from INSM lawyers.
1. As we have all pointed out, 35 USC 154c, WILL apply to 414 and 287, which means, no damages, no lawyer fees, and no INJUNCTION can result from 414 and 287. can't be clearer than this! so the 7.5 Million damage will be changed....in my opinion to 2.5Million for only 1 infringement rather than 3. As to the royalty of 15% to 20%, i don't see any changes...because of the equitable remuneration clause of 154c for 414 and 287 as royalty is a good form of equitable remuneration.
2. No subject matter jurisdiction....this one IMHO....is not as clear cut as the URAA 35 USC 154c argument.
3. IMHO, this case now rest on the motino for JMOL and IC ruling on 151. Public interest favor INSM on injunction. JMOL on 414 on the issue of invalidity and non-enablement is just icing on the cake now because 414 and 287 don't represent injunctive threat.
Both 151 and 287 expire(with the URAA 17 year from issuance extension) in 2010. and no injunction can occur for the 414 and 287. So the worst case, the judge is an idiot and issues injunction based on infringement of 151, the order can only be carried for 3 years. INSM can survive 3 years. After which, only 141's equitable remuneration clause works. (which means probably 1-5% royalty or less and certainly no law suits)
Given the current situation, I do believe that INSM do NEED to release some trial data on MMD and other trials to further demonstrate the case with "Public interest" I believe a takeover offer by any of the following companies will be favorable: Genentech, Pfizer, Novo Nordisk. A merger with Tercica is also better than the current situation, but I believe that there is too much bad blood already. I for one would rather die to see INSM merge with Tercica, and sure love to see TRCA become TRCA.OB someday within 5 years.
