I just talked with a Patent Attorney who also is a PHD specializing in recombinant DNA. Here are some of the highlights of the conversation.....in no special order of importance
If Insmed loses the trail in November, the next step would be an appeal to the Federal circuit courts. He has often seen cases over turned here, but Insmed cannot appeal until the trial is over.
He asked if Insmed has patents for Iplex; I know of the European patents and the Celtrix patent covering Diabetes which Insmed purchased, but was not sure of others. His point that there can be patents within patents and even though Insmed may have infringed on Gentechs patents, that does not invalidate Ismends patents which are more specific. He stated the case where Motorola has the broad patent for VCR technology, however Sony with Betamax and Panasonic with VHS has specific implementation patents. Motorola sued Panasonic for patent infringement, and won, but that did not invalidate Panasonics patent and in the end Panasonic was the financial winner in that Motorola had to pay Panasonic for rights to their patent. In other words, winning a patent infringement suit does not grant the winner rights to the losing parties patents.
Given the state of big bios, Gentech being the second largest, it would appear that Gentech wants Insmeds patents and technology. If Insmeds wins the trial case in November look for significant buyout offer. If Insmend loses, look for a cheap buyout assuming Insmed has patents.
As far as invalidity of the Gentech patents purely on scientific merits, he was not able to comment without thorough research and analysis, which is expensive and I am not sure if I want to pay. He said the defenses goal (Insmed's in this cases) is to demystify the science so that layman can understand the concepts, assuming the the science is in their favor.
As far as the trial goes, his experience as a litigation attorney was the difference between winning and losing, especially in unclear cases, was with the expert witnesses. Both parties will bring credible experts into the court room, however who wins often is which experts are more credible and believable to the jurors. He also mentioned that contrary to belief, most jurors are diligent and make good decisions, but much is based on expert witness testimony; body language, do they relate or resonate with the knowledge and experiences of the jurors. If Gentech cannot win on strength of the science, then they will look for a single failure point and work that issue with the jury.
He also said that the trial judge presiding over the case can declare a verdict without a trial...I cannot remember the exact legal term, but trial judges can after reviewing all the evidence make a judgement and not have the jury trial.
All said, the big outstanding unknowns for me are:
1) What patents does Insmed have and what are the the scope of the patents.
2) What is the strength of Insmeds defense purely on patent and scientific merits. It appears that many here believe that Gentech's patents are invalid due to prior art.
Regards. Windy
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