That would make sense, inasmuch as these patents describe improved manufacturing methods. My explanation goes like this: After looking at the depositions of Drs. Anderson and Kohlberg (11/4/09) (guessing, it could have been someone else's testimony), Teva perhaps found that some of Sandoz' manufacturing process might infringe these patents. Why they did not throw them into the complaint from the beginning is what mystifies me. Might be a major screwup on Teva's part. One of the principle reasons the patents were not allowed into the complaint is that there would be no way to complete discovery in the allotted time. Had Teva been faster on the draw, that would not have been a problem for them. The 847 patent -- the main bone of contention -- some 3 & 8 years younger than the other two you specifically note as not being in the Orange Book, oddly does not incorporate these older patents by reference or cite them. Perhaps, noticing this, Sandoz/Momenta cagily chose the manufacturing methods from those non-Orange Book patents as a starting point? Older methods, but good enough to get the job done?
One thing that strikes me about these patents is their brevity. All other biotech related patents I've ever read are much longer. I guess Teva was in hurry . . . and perhaps not as experienced at setting up their branded compounds with patent protection as at challenging other companies' brands. Ironic.
Aside to zipjet: You are right, no MSJ for inequitable conduct. Thinking about the high burden of proof and the SJ process, that is probably too ambitious a strategy to fool with.
Regards, RockRat
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