Replies to post #11349 on Momenta Pharmaceuticals, Inc. (MNTA)

[DewDiligence]

The USPTO has a huge backlog and moves with the speed of a hippopotamus.

[mouton29]

<<Curious it would take TEVA this long to do this...why not do it right after the CAFC decision?>>

In fact, that is precisely what they did -- that is, the reissuance application is old news. From the Mylan brief opposing TEVA's cert application:

3. Subsequent proceedings before the Patent
Office
On August 12, 2013, Teva filed an application
with the United States Patent and Trademark Office
(Patent Office) asking that it reissue the ’808 patent
to correct the error in the claim language identified
by the Federal Circuit. See Appl. No. 13/964,856,
portal.uspto.gov/pair/PublicPair (search by application
number). Reissue of patents to correct an error
requires an oath by the applicant admitting the existence
of the error to be corrected. 35 U.S.C. § 251;
37 C.F.R. §§ 1.63, 1.175; Manual of Patent Examining
Procedure §§ 1402, 1414. The reissue application remains
pending before the Patent Office.

Evidently, the hippo has not quite reached 30 kph.

The full brief is available here, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/03/Respondents-brief-in-opposition-to-cert.pdf


In the interests of balance,
here is TEVA's brief, seeking cert:

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/03/Petition-for-a-Writ-of-Certiorari1.pdf

The nub of TEVA's argument is that the Federal Circuit reviewed the lower court decision that the 808 patent was not indefinite "de novo", that is, they did not "defer" to the findings of the lower court as they generally would for factual matters, being of the view that the question is a legal one. The standard of review for claims of indefiniteness is one that has been, and is being litigated in the Federal Circuit, indeed, one of the arguments adduced by Mylan/Momenta legal team is that the Supreme Court should wait for the full panel of the Federal Circuit to review the question, as they are scheduled to do.