cs: Teva Pharmaceutical Industries (TEVA) RESTRICTED M. Faerm
CP: US$ 38.33 TP: R CAP: US$ 36b
Copaxone Trial Day 5: Defense Presents Obviousness Argument
! Bottom line: The defendants, on day 5, scored some points, with expert testimony that made a plausible case for the
inventions being obvious. Teva's cross-examination mitigated the damage, although they will have some work to do when
their experts address the same issues.
! Day 5 was characterized by painstaking scientific detail, as both sides questioned one of the defense's key witnesses, Dr.
Zeigler, a validity expert. Nearly the entire day was spent explaining why, in his view, every patent claim at issue is, in fact,
obvious (based on prior work). Dr. Zeigler's presentation was clear, exhaustive, and in parts convincing. Per our legal
expert, Dr. Zeigler was able to address every part of every patent claim by referencing either 1) documents that pre-existed
the patents (prior art), or 2) plausible appeals to information a good scientist (someone skilled in the art) presumably should
know.
! Teva's cross examination put many issues back into play: Even if not winning all issues raised, Teva's legal team was able
to put many of the expert's arguments for obviousness back into play.
! One large section of expert testimony was devoted to his explanation of how he would have pieced all the prior work
together; by referencing an older patent, then an article cited in that patent, then moving to a second article cited in the first
article, and so on.
! Teva made a reasonable push on whether the trail described by the expert was too convenient, and if it was really plausible
that a scientist, before the Copaxone patents were issued, would have been motivated to follow such a long, tortured path,
or was Dr. Zeigler only able to do so now using the patents as a guide.
! Teva was able to poke holes in portions of the expert testimony: A different part of Teva's cross-examination focused on
disputing some information cited by the expert as prior art, by pointing out that it was either not public or not prior; and he
did concede several of those mistakes. Teva's lawyer also rebuked the expert for making claims on what was "obvious" in
regards to treatment of MS given that Dr. Zeigler has absolutely no medical credentials, a tactic our legal expert believes
was used both to discredit the MS testimony and the witnesses' overall credibility, in terms of his objectivity.
! Teva reminded the court that nearly all the information cited by the witness was available to the Patent Office at the time the
Copaxone patents were evaluated. The fact the patents were issued indicates that the patent examiner, an unbiased party,
did not think that earlier documents rendered the patents obvious. Additionally, as a matter of procedure, the court is
obligated to heavily defer to the patent examiner's view.
! What's next: The trial seems to be running faster than originally anticipated. It looks like the defense will wrap up by Friday
(September 16), in which case Teva would start its rebuttal on Monday and the case could conclude by Wednesday or
Thursday of next week. The judge, at that point, is unlikely to make a ruling. She will instead take all information and
materials raised in the trial under advisement. Also, it is likely that both sides will be allowed to file closing briefs which
summarize their views of the trial evidence. |
