Momenta Pharmaceuticals, Inc. (MNTA)

[tinkershaw]

Thus, when analyzing the likelihood of success factor, the trial court,
after considering all the evidence available at this early stage of the litigation,
must determine whether it is more likely than not that the challenger will be
able to prove at trial, by clear and convincing evidence, that the patent is
invalid

This is consistent with what I wrote. Patent(s) are violated, and if there is a reasonable and good-faith argument on both sides, PI granted. MNTA meets its burden by demonstrating likelihood that patent violated. Ampha responds back with excuse therefore, and MNTA responds back with reasonable disagreement with position. Given the legal standard, Ampha will need to present an excuse in which there is no reasonable response and position to prevail at this point...given the limited paperwork and arguments we have seen (and this is only based upon Ampha's legal work as we have not seen anything from MNTA).

This assumes that MNTA has sufficiently demonstrated violation of the patent (which seems implicit in Ampha's response), thereafter, can reasonable people differ on Ampha's defense? If so, I think the likelihood of success standard will be met.

Not my area of law, but given the equities and the discretion given to the judge, it is the common sense result if the above assumptions hold true, particularly given the early stage of these proceedings and the high stake results that will flow otherwise to a patent holder who will be irrevocably damaged if the court erred against them, while rewarding a party who has demonstrably utilized their IP to produce commercial product.

As evidence is later developed, Ampha can come back and remove the PI if this evidence becomes more indisputable to their side of the claim.

but my hornbook analysis.

Tinker