Replies to post #152769 on Biotech Values

[DewDiligence]

…the CAFC denied [en-banc rehearing] so the Classen and Momenta cases, which from what I've read come to somewhat opposite conclusions, can be consolidated by the Supreme Court.

Thanks for weighing in—your explanation makes sense, IMO. Even if 5 or more CAFC judges agreed with the original 2-1 decision, one would think they would want to establish the clearest possible precedent on a matter of such importance to the drug/biotech industry.

[iwfal]

MNTA -

so the Classen and Momenta cases, which from what I've read come to somewhat opposite conclusions, can be consolidated by the Supreme Court

Questions if I may:

1) Timelines - how long?

2) More generally, do you know the procedure for consolidation - e.g. does the consolidation process short circuit some of the normal processes?


PS Interesting hypothesis - that the CAFC could have denied en banc to allow consolidation. FWIW for those only peripherally aware of the procedural and political aspects within the court system it comes as somewhat of a surprise that this kind of maneuvering happens (this is, in no way, expressing doubt - since I've read articles written by judges that note that it absolutely DOES happen. But when I first read it I was very surprised.)

[DewDiligence]

MNTA—If [USSC cert] happens, I would expect the more conservative Supreme Court [justices] to side with patent/property rights over the short-term "public good" of lower drug prices.

This case may be more complicated than conservative vs liberal; from stockbettor’s musings in #msg-81699583:

The legislative history as recounted by [CAFC] Chief Judge Rader strongly favors MNTA's position. But the statute can be literally read, as Judge Moore did in MNTA without resort to legislative history, to favor Amphastar. Scalia has long advocated disregarding legislative history if the statutory language is clear. I believe this is called the "textualist" view of statutory interpretation. Presumably Scalia could pull along a few colleagues if he considers the Hatch-Waxman language to be clear.

In other words, it’s not immediately clear which justices on the USSC are favorably predisposed to MNTA’s argument.

[DewDiligence]

US Supreme Court will not hear the Classen case:

http://t.co/O2Ksb7gm

Expected outcome insofar as the Solicitor General recommended against certiorari.

USSC could still accept the MNTA-Amphastar case, but that would seem to be unlikely.