Thursday, October 16, 2014

Oral argument in Teva v. Sandoz

Reuters covered the oral argument in Teva v. Sandoz in the post Supreme Court divided in battle over Teva MS drug patent .

The Reuters text included:

Several justices, including Chief Justice John Roberts and Justice Samuel Alito, appeared reluctant to tinker with the existing system in which the appeals court is accorded great latitude in rethinking lower court findings.

"Is it worthwhile as a practical matter?" Alito asked, referring to the notion of disrupting the status quo.

Justice Sonia Sotomayor added, "Why don't we defer, as has been done now forever, to the Federal Circuit?"

Other justices seemed more concerned about the appeals court exerting too much power over lower court judges. Justice Stephen Breyer cited other areas of the law in which lower court judges have discretion.

The oral argument may be found here

William M. Jay presented the argument on behalf of petitioner (Teva), and started off with the proposition "trial judges find the facts." Justice Ginsburg immediately asked about the "facts" at issue in this case.

Later, Jay recommends "deference to classic fact-finding."

Justice Ginsburg brought up the point that inferences from facts get de novo review.

Justice Kagan got to the point of expert opinion testimony.

Justice Alito brought up a law review which suggested there is no practical difference between de novo review and clear error review.

There was some tense interplay between Mr. Phillips and Justice Breyer.

Justice Breyer stated that most amici favored fact-finding by the district court. (page 42) [This point seems in conflict with material at PatentDocs, Teva v. Sandoz -- Is Deferential Review a Boon for Patent Trolls? , which stated that the amici briefs favored de novo review: Interestingly, of the three amicus briefs submitted by operating companies themselves (representing 20 companies in total), all supported maintaining the de novo standard of review.]

At page 47 and page 48, there was a question of "how many" patents issue per year. No answer.

At page 49, one has the text "misstatement of science."

As to errors in science by district courts, one egregious chemistry mistake happened in 52 USPQ2d 1418, 1429 (D.Az. 1998) as later corrected in Durel Corp. v. Osram Sylvania Inc., 256 F.3d 1298, 59 USPQ2d 1238 (CAFC 2001). In various issues of "Intellectual Property Today" [IPT], LBE discussed the scientifically incorrect analysis of stoichiometry which underlay the district court decision. See the March 2002 issue of IPT: Omissions and Commissions: Durel v. Osram Revisited

***See discussion at PatentlyO including comment by Ned Heller:


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