Silicon Investor (SI) -- The First Internet Community

STOCKTALK

We've detected that you're using an ad content blocking browser plug-in or feature. Ads provide a critical source of revenue to the continued operation of Silicon Investor. We ask that you disable ad blocking while on Silicon Investor in the best interests of our community. If you are not using an ad blocker but are still receiving this message, make sure your browser's tracking protection is set to the 'standard' level.

Biotech / Medical : Cadus Pharmaceutical Corp. (KDUS) -- Ignore unavailable to you. Want to Upgrade?

To: Findit who wrote (231)	9/8/2000 10:00:57 AM
From: Biomaven	Read Replies (1) \| Respond to of 1833

Sure this is appealable, but in the context of the earlier PTO decision torpedoing the patent anyway, I doubt they will. MRK is also likely to take a more dispassionate view of this than Sibia would have on its own. Peter

To: Findit who wrote (231)	9/11/2000 4:28:52 PM
From: RCMac	Respond to of 1833

>> can they appeal the appeal verdict? << The CAFC decision is final, for practical purposes, for two independent reasons. First, the several possible avenues of further "appeal" within the court system are of no likely use to SIBI/MRK, and second, as Peter Suzman points out, the PTO is likely to moot the case when it makes final its earlier tentative decisions that the patent is invalid. In short, the patent on which SIBI sued has now been invalidated by the CAFC, and is very likely to be, independently, by the PTO. First, although there are three technically possible further steps for SIBI/MRK to take in the courts, each is unlikely to get them anywhere. (A) They can petition the deciding panel for rehearing -- asking the same three judges to reconsider (very unlikely, IMO - these guys have already argued it out in detailed, forcefully articulated opinions). (B) They can petition for a rehearing en banc by the CAFC -- all the judges on the court, not just the panel of three (very unlikely, IMO). (C) They can petition for a hearing by the Supreme Court. Even more unlikely, IMO. The Supreme Court's caseload is almost entirely in the Justices' discretion, and of the several thousand cases brought to them each year they choose to hear a little more than 100 cases, thought to be of some national importance. The Supreme Court sits to decide important issues, not to decide specific disputes, for which the Courts of Appeals are almost always the last word. This rather routine commercial dispute -- like the Barr Labs v. Lilly decision a couple of weeks ago -- applies familiar principles of law to specific facts, and is of little precedential value, i.e., of little interest to anyone except the litigants and their shareholders. IMO, no way the Supreme Court takes either this case or the Barr v. Lilly case. Secondly, in any event, as Peter pointed out the case will be moot, as soon as the PTO makes final its March and July office decisions invalidating the SIBI patent on seven separate grounds (see Rick's post 122 on this thread: Message 13104575 and the recent 10-Q). As Tom Pope tersely stated this independent ground in post #233: “the patent has been invalidated by the PTO, and Cadus could not have violated a non-existent patent, nor could Sibia collect damages for Cadus' violation of that non-existent patent.” How likely is the PTO to affirm its patent examiners' preliminary "office decision"? I've been saying 90-95% since I discussed this with a patent lawyer friend in some detail after the March decision. He told me that even before the tentative decision in March, the examiner (1) would have had extensive input from both KDUS and SIBI, and (2) in light of the importance of the case to the parties and the court decisions turning on it, he/she would likely have discussed the matter with other examiners who review biotech patent applications, including is superiors - i.e., would have given it particularly careful and collegial thought before saying the patent was invalid on seven separate grounds of prior art. Thus, although SIBI/MRK has had the procedural opportunity to submit further information and argument before a final PTO decision, the examiner and PTO had probably already heard everything the parties had to say, so that the PTO will likely follow the examiners' lead. It was this reasoning that made me comfortable enough to back up the truck for KDUS again, after selling 95% in the February surge – some of the new shares as high as 3 1/2 but most below 1 – I can get very comfortable indeed buying a stock for under half its cash, all the more so when Rick says the science looks good. (I bought BTRN at 3 and 1 5/8 when it had $3.00/share in cash, and NBIX at 4 1/16 when it had $2.97/share in cash, and both companies had attracted Rick’s enthusiasm [plus MZ’s in the case of NBIX], so I’ve learned -- a half-blind mule would have learned -- that this way of proceeding is often a good bet. <vvbg> ) --RCM