Rock Creek Pharmaceuticals Inc. (fka RCPIQ)

[thefamilyman]

gd6991 -

SC Writ, since the RJR writ was never hear by SC, does that leave the door open for another company to file to SC or would they have to go through the entire process to get access to SC?

I'm not an attorney, and I am recalling some old memories for some of this but I'll take a shot. Over the last 30 years, I have had occasion to become familiar with various types of litigation, including patent litigation. I would ask any real attorney who has more up to date information, to correct any mis-statements I may make.

Another company, I will say for example PM, cannot jump to the Supreme Court with this issue on Star's patents. Star would have to sue at the District Court (DC) level and then that result would have to be appealed to CAFC. At that point, I "believe" that the defendent company could then appeal to the SC on the same issue as RJR.

But the issue is potentially a bit more complicated. At the District Court level, there would/should be a presumption of validity due to CAFC's ruling. However, the DC may well allow PM to introduce "new" evidence on the validity question. Anything that was raised in the RJR trial would not be admissible. (I think the appropriate doctrine is Collateral Estoppel?) I believe the only thing that could reasonably be raised by PM or any other BigT to challenge validity, would be evidence that there was public use of the technology at least (one year?) prior to Star's patent date. If such evidence was in the public domain RJR would have found it. The only way I believe that such "new" evidence could exist is that it would have to have been internal to one of the other BigTs.

I certainly don't think that PM has such evidence. Their TSNAs are apparently much worse than RJRs. If their researchers were already working on lowering TSNAs, they would have been able to do a better job of making the Star Cure process effective at reducing TSNAs. Instead they apparently just retrofitted their barns to use indirect heat in the curing process.

As to how all this impacts the ability of Star to win the infringement argument, I am not informed enough to address that question. But I would think that Star's attorneys learned enough in the suit with RJR to know what they need to do to win.

JMHO