Replies to post #110473 on Biotech Values

[tinkershaw]

If Teva can get away with using developmental patents, as long as they do so ex-U.S. and then after development re-engineer the production process, and then import into the U.S. what has effectively been done is the destruction of any developmental patents in the United States given the global nature of the economy.

I have never litigated this issue, or studied it actually. But it is not difficult to see that this destroys the entire patent system in the U.S. that requires a patent to be published in such a manner that anyone learned in the art can read the patent and learn from it and utilize the patent.

Because of this, developmental patents would then become mere textbooks for the competition and become WORSE THAN NOTHING, because not only would they be unenforceable in any practical sense, they will also not only communicate but actually teach the competition how to take advantage of all your hard work and intellectual property. Might as well just open up the store for every competitor in the world!

Given this result, it is difficult to see how a court would allow this sort of exception to IP protection. It destroys the entire system.

But it is a clever argument and legal parsing. Wonder if there is any precedent for it. MNTA's legal team I'm sure is well versed in this, AS IT IS THE BASIS FOR THE BULK OF MNTA'S PATENTED IP! and pretty much destroys the current business model if this exception is allowed!

Am I being too dramatic here? I've only quickly come in and browsed a few posts, but came upon that legal argument. If I am reading it in context, that legal argument, if successful, destroys MNTA's business model.

Tinker

[zipjet]

MNTA

Question: IF TEVA in order to create, or prove, or manufacture, or convince FDA, of the "sameness" of tL infringed MNTA's patented processes literally or under the doctrine of equivalents and after so establishing "sameness" and refined manufacturing processes that can reliably reproduce a "same" L without further use of said patents, can TEVA sell tL in the US without infringing the patents?

Answer: No.*

Of course, I am not a patent lawyer and do not even know the law in this area. But my sense of justice is that if a foreign corporation can use patent disclosures to engage in actions that if done in the US would have violated the patent, and having used them abroad, take the learnings and use them directly to compete in the US which otherwise would have been prevented this eviscerates the patent.

ij

* I suspect the reason no one has even tried to answer this question is that none of us know. I would also guess that once the question is properly defined (my poor attempt is NOT that) there is NO answer to the question in the law. (I am not suggesting there is nothing that speaks to the issue or even speaks strongly to it.)