Momenta Pharmaceuticals, Inc. (MNTA)

[mouton29]

I think that comment meant that the Federal Circuit might undertake an en banc review in another case -- MNTA sought en banc review in its case and the court declined.

It seems highly unlikely MNTA will prevail in district court, I would expect summary judgment in the near future -- the hearing is scheduled for Monday. Practically all of MNTA's recent pleadings are sealed so we don't know their arguments, but the Federal Circuit practically directed a verdict for Amphastar when they said MNTA is unlikely to succeed on the merits. See the quote below.

I suspect what MNTA is trying to do is get the district court to rule broadly. Perhaps then they will try again at the Supreme Court, at a point when they would be appealing a final decision, not an "interlocutory" one.


"Under the correct interpretation of 35 U.S.C. §271(e)(1), Momenta’s admission that Amphastar’s testing is carried out to “satisfy the FDA’s requirements,” Appellee’s Brief at 40-41, makes it unlikely that Momenta will succeed on the merits of its infringement claim.

...
On remand, the district court may want to consider whether Momenta’s admission that Amphastar’s use of the patented invention is to “satisfy the FDA’s require- ments” makes this case amenable to summary judgment of non-infringement in favor of Amphastar. Because the safe harbor issue is dispositive, we need not reach the other arguments on appeal."