Tuesday, January 27, 2015

Teva, Sandoz each act after Supreme Court decision

The ScotusBlog discusses current timing issues in Teva v. Sandoz:

Specifically, Sandoz and three other generics on Friday asked the Court not to wait the usual twenty-five days to put its new decision into effect, saying that each day is important with the last remaining Teva patent on Copaxone due to expire next September 1.   Any delay, those firms said in their application, may mean that the case loses any remaining significance on the question of when the generics could enter the market with their version of Copaxone.
For its part, Teva told the Court in its response Monday that it has already asked a federal trial judge in New York City to put back into effect a formal court order that bars the generic firms from putting their substitute on the market until after the remaining Teva patent has expired.  Teva argued that the Justices should not issue their implementing order until after the New York judge has a chance to act on the plea to restore the marketing injunction order.  If the case returns swiftly to the U.S. Court of Appeals for the Federal Circuit, the New York judge would lose jurisdiction to put that order back into effect, Teva contended.  The generics, the company added, will not be harmed, because they still have not obtained government clearance to sell their generic versions.


One interesting aspect of the review requested by the Supreme Court is that Teva's argument about Mp was both during prosecution (intrinsic) and in litigation (extrinsic).  Which standard applies to the  level of deference?

*also, from an article in the National Law Review


So the Fed. Cir. could at once give “deference” to the technical definition arrived at by the district court, while finding that the claim construction was erroneous. To use Justice Thomas’ framework, since Google lost, it needs to be able to argue on appeal that the Fed. Cir. did not give proper deference to the extrinsic technical definition applied by the district court. But the Fed. Cir. reminded us that the intrinsic evidence often trumps the extrinsic evidence. (“However extrinsic evidence may be less reliable than intrinsic evidence.”) While the “point” of the holding in Teva is to reduce the “zone of uncertainty” involved in claim construction, the Fed. Cir. will always be free to access the specification and the prosecution history of the patent in suit, and to review whether or not the district court’s legal analysis of the intrinsic evidence was facially deficient, no matter what facts were “found”. In Vederi, the outcome turned on the definition — or lack thereof — of a single word. I don’t think that the Fed. Cir. will find it overly difficult to sidestep the necessarily extrinsic “evidentiary underpinnings” of claim construction.


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