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Biotech / Medical : Momenta Pharmaceuticals Inc. -- Ignore unavailable to you. Want to Upgrade?

To: tuck who wrote (2851)	9/25/2011 9:23:05 AM
From: IRWIN JAMES FRANKEL	Read Replies (1) \| Respond to of 3027

Yes - mC. Sorry for the careless error. I have argued consistently that IMO, that Teva's later patents are conferring an extended term of protection for the same invention - copolymer 1. It was a novel advance to the state of the art in 1987. But the first round patents are long expired. Double patenting should not be allowed. I have also said that I am not so much concerned with which of the theories of invalidity that the court picks - just pick them or argue them all in the opinion. Here is an argument I have not made with this detail before that comes from reading the trial comments: Enablement. We grant patents to incent inventions that benefit us by granting for limited times the exclusive right to practice the patent. One of the CONDITIONS of that grant is that the inventor disclose sufficient detail concerning the invention that others skilled in the art can practice the invention after the patent term expires. The inventor has great incentive to provide inadequate enablement since his monoploy profits can then continue beyond the patent term. Thus, the policy of the law should be to penalize inventors who do not enable the practice of the invention in the patent. Only the inventor can enable. Clear enablement should be his burden to both do and prove. Thus, when reputable scientists come in and say we really do not know how to make this, or Teva says it really cannot be duplicated, THEN I suggest they have NOT enabled the practice of the invention. Keep in mind that if the "recipe" had been completely disclosed, then MNTA technology would be moot. Any competent pharma would be able to make Copaxone and we could see a typical waterfall price movement at generitazation. My high-view of enablement has either been lost in technical legal arguments or perhaps rejected by the courts entirely. (This is not my field.) Yet good policy on patents begs for complete enablement and inventors should game it at their own risk. ij