David,
A few thoughts about the AFFX v. INCY press release war today.
Since I don't know the evidence I don't have an opinion as to who will ultimately prevail in the PTO, but I can spot hype in a press release, and AFFX's release, biz.yahoo.com (reproduced in my prior post)
smells pretty dubious to me.
A couple of things that AFFX's rhetoric tries to gloss over.
First, the order to show cause is the PTO's response to INCY's proceeding commenced against AFFX, not the other way around. This is AFFX spinning defensively (and IMO pretty weakly).
Second, the "effects" trumpeted by AFFX's General Counsel are pretty meager: (1) no effect on the '934 patent (although INCY has lost one of its arguments), (2) no effect on the broadest claims of the '992 two color patent (because they're not involved in this proceeding -- but AFFX gratuitously says that INCY infringed them anyway, and that INCY "has provided no basis for believing that these uninvolved claims are not both valid and infringed") and (3) AFFX was named the "senior party."
I don't see why INCY, in this proceeding not involving the broader claims of the '992 patent, was expected to address these "uninvolved claims," or why its failure to do so means anything at all. In a formal judicial or administrative proceeding you address the issues in dispute, not issues which are off topic. Maybe the earlier drafts of the AFFX PR seemed skimpy, so they shovelled this in?
The "senior party" status means very little - it certainly doesn't mean that AFFX has, but for some minor details, essentially won the interference proceeding, or even that it has a downhill ride to victory.
Where there is an apparent conflict between the claims of two patents (the predicate for an interference proceeding), the party who filed its patent application first is the "senior party." But the U.S. patent system is based not on priority of filing, but on priority of invention. The winner of this interference proceeding will be the party that shows that it invented or discovered the subject of the patent, and that showing will be made by the parties in the materials this order requires them to submit. The fact that AFFX filed first gives them a modest procedural advantage - INCY has to present its proofs and arguments first, and has the burden of proof - but this hardly suggests that AFFX has it easy. It will depend on the evidence, not on spin about procedural matters.
As for AFFX's statement that "Normally the senior party wins an interference because of the heavy burdens of proof on the junior party", this strikes me as the sort of thing a good lawyer avoids saying in argument because it is so transparently weak and fallacious that it undercuts your own credibility. It may be true statistically that senior parties win more than their opponents, but that statistic is meaningless - whether you win your case depends on the strength and weakness of the parties' cases, not on how all other litigants did on average. (And I have the feeling that INCY wouldn't have started this interference if it didn't think it could win it.)
It's also worth remembering that the AFFX fight involves something like 5-6% of INCY's revenues, so that even if INCY lost the whole war it would be harmed only modestly.
(INCY's release, which INCY got out first, is at biz.yahoo.com .)
--RCM |
