Momenta Pharmaceuticals, Inc. (MNTA)

[GrthzGd]

I respectfully disagree and think a settlement is a likely outcome

Dew, I don't think your statement conflicts the idea that the case will be won or lost at the Oct. 20th hearing--let me explain what I meant. Judge Gorton's rulings will narrow the likely range of outcomes to the case--as perceived by the parties. This narrowing of options will greatly increase the incentives to the parties to settle. If they do, favorable terms to MNTA will signify a MNTA victory. Unfavorable terms to Amphastar/Watson will signify a MNTA loss.

Obviously, it will greatly favor MNTA if Judge Gorton grants a preliminary injunction and expedited discovery, since doing so will have to be based on a clear determination of likelihood of success on the merits. This will influence the strength with which MNTA presses its case in any settlement discussions, abetted by the fact that MNTA will continue to have the revenue wind at its back as long as it holds out. Equally obviously, if he refuses to allow the TRO to mature into a PI, it will be because he sees little likelihood of success, and MNTA's case will basically be lost at that point.

BTW, to correct a comment by IG, the law still presumes validity in favor of the patentee. The infringer bears the burden of proof at trial to demonstrate obviousness by clear and convincing evidence. See this article on the 2007 KSR v. Teleflex decision. The statistic that 70% of plaintiffs in cases similar to this one lose just means that it's generally in the best interests of patent holders to pursue weaker cases to trial.