Replies to post #121848 on Biotech Values

[exwannabe]

I would assume the vast majority of summary judgement motions are denied for exactly this reason (facts are in dispute), and it can almost be a form reply.

This differs from rejecting a PI where more information might come out. Example, SFA vs. FDA in the mL suit where the Judge clearly sided with the FDA as he discussed the odds of SFA winning the final decision.

[north40000]

Predicated on results and procedural developments I have seen in other cases, several possibilities exist for resolution:

1) should judge timely find inequitable conduct after bench trial,
the judge could be persuaded to enter final judgment which TEVA no doubt would appeal to Fed. Cir. That has advantage of delaying or staying a trial on the merits of validity and infringement--such a trial is invariably longer in time, more costly, and involves most likely participation by a jury. See Star Scientific v. Reynolds Tobacco, where J.Garbis found inequitable conduct on part of Star in a bench trial; on appeal by Star, the Fed.Cir. reversed and remanded to D.Ct. for trial on the merits of multiple validity and infringement issues. A jury subsequently found no infringement and invalidity of patents after a lengthy jury trial. J.Garbis entered judgment on those findings, which judgment now is before the Fed.Cir. Argument was had in early January, no decision yet.

2) The judge might refuse to enter[reserve] judgment on finding of inequitable conduct, and hold previously scheduled jury trial. Appeal and cross-appeal might be had on judgment on all issues then extant. Some Fed. Cir. authority favors such procedure to avoid multiple appeals.

3) with finding of no inequitable conduct after mini bench trial, procedure in (2) would likely ensue.