Momenta Pharmaceuticals, Inc. (MNTA)

[tinkershaw]

my understanding from one of the motions filed on 10/19 is they are using obviousness to 1985 patent. They have also quoted patent prosecution where rejection was sent based on obviousness before final allowance. This in addition to their other defenses which you mention.

We do not have MNTA's side (only Ampha's) but with just this, my analysis (if you will call it that) remains unchanged.

If MNTA can clearly show the patent violated, then Ampha gives its defense, and if there is a good and reasonable response to that defense, such as obviousness, then I think MNTA should prevail. If, however, Ampha's defense is clear cut, and MNTA's response thereto is pretextual or hog wash or hyperbole whatever term you want to use, then Ampha will prevail.

We don't know all the variables to plug into that equation. Ampha claims obviousness (of course they do, does not mean MNTA does not have an equally good position that there is not obviousness). If that is the case, given the standard, MNTA should prevail. If, however, MNTA's response on obviousness is rather weak, then Ampha should win. We just don't know MNTA's position on the issue, so we cannot complete the equation.

However, given what we do know, or think we know, that MNTA has shown that Ampha has very likely violated at least one material patent, that puts MNTA in a good position unless there is some very strong and difficult to refute defense that Ampha has.

That is all I am saying. I just wish we had access to all the variables to plug into that equation. Just inferring from what we have, and what seems like Ampha's tacit admission that there is a violation of the patent, and MNTA's demonstration of this by gaining the initial TRO if nothing else.

I have been in such situations where an Ampha does come up with some sort of frustrating and unrefutable exception that leaves one stammering for an effective response despite what seems like their wrong doing. Maybe this will be one of those cases. I think MNTA, however, will have reasonable rebuttals to these things by Ampha, and if so, the above equation is the way I see it coming down...but since we have so little data points to plug in other than what we have discussed, don't bet the mortgage money on it one way or the other.

But yes, the framework I've inferred from the law and common sense, and from what we have discussed fact wise, is favorable in a general sense to MNTA.

Tinker