IMO, J.Wilken should dismiss the suit for the reasons given by INSM in its briefs....no case or controversy when the DNA complaints were filed, no subject matter jurisdiction. Whether she will have that opportunity to dismiss still remains to be seen.
It may be difficult for the average person to understand that the entire trial was advisory on a hypothetical question, given the well-pleaded complaint did not plead any acts of infringement that were not negated by 35 USC 271(e)(1).
With EU recommendation due out soon (already communicated to Insmed?) they may be setting up a ROW deal that would set them up in the EU (manufacturing outside the reach of the U.S. patents); help them to fund further research and trials; and provide Insmed the funds to take this cause through the appeals process.
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