Background - Bayer vs Housey was a ruling about the interpretation of a section of the law (271g) that prohibits the importation of a product "made" abroad using processes patented in the US. In this case Housey's assertion was that Bayer had used Housey's patents to discover a useful drug thence imported.
Bayer vs Housey ruled that only patents used in the manufacturing were intended to be covered by the law - patents used in discovery were not protected by law.
Altogether agree, as is captured elsewhere on these boards, that if:
a) the Momenta patents were only used in discovery
OR
b) in proving to the FDA as a one-time event that the aL is acceptable
Then Momenta's case is much weaker - but given the FDA's concerns in these matter either of the two above conditions is true.
PS Amusingly the OCR they use in electronically capturing the legal rulings stinks.
On reflection, though, a more cynical interpretation is possible, which is, it may not be wise to publicly castigate the judge and their exparts submission (quoted in the message I am responding to), which was then quoted in the press, could be so interpreted. This clarifies that the judge did in fact, make the required finding that MNTA is likely to prevail.