Replies to post #122121 on Biotech Values

[zipjet]

zip>>I do think obviousness/double patenting is the most probable basis for invalidation. "

rw>>Zip....do you still feel this way? Have your coworkers that are patent lawyers given you helpful insight that is consistent with your original statement from last November?

I may be wrong but I have not changed my mind. :-)

I do not have any close friends that are patent lawyers - much less skilled in drug patenting.

My views on this largely flow from a sense of how the economic compact we call patenting SHOULD work and how judges behave.

The concept of patenting is to grant for a limited time the exclusive right to prevent others from practicing an invention that is novel, unexpected by those knowledgeable in the art, and a major advance in exchange for the inventor disclosing enough information for others to practice the patent after it expires.

TEVA got a patent on Copaxone and it expired long ago. TEVA then patents it again claiming the right to patent an advance that narrows the mw of the drug claiming reduced toxicity.

This raises the question whether the narrower range of mw meets the requirement for a second patent. Is it novel, unexpected, a significant advance? Does the advance justify a SECOND patent term?

I do not believe it does.

There has been a lot of discussion about the different legal theories that may be applied by the judge to invalidate the patent. Those are fine intellectual exercises. But what a judge does can vary a great deal and turn on other factors. Which side does the judge decide he/she wants to win? Is the judge ticked at one side or the other? Is the judge interested in the intellectual aspects of the case or just wanting to make the right decision? Is the judge self-confident? Does the judge want the decision sustained MORE than having the appeals courts view of what is right? These factors influence the kind of decision you get and how the judge writes up the decision. They influence or even at times control the theories the judge selects to support the ruling. This is why I have refused to handicap which theory(ies) the judge may select.

I think the C-patent will not block a launch of mC. I give that a high probability - call it 75-85%.

Once we get the decision it will make a fun intellectual read. But why it comes out that way will always be a mystery. :-)

ij