The article on Friday's hearing that has been mentioned here was written by a stringer without a law background. It was a well written, even handed article. In it, the author mentioned that Judge Illston said she was leaning toward SQNM's position. I admit that I took this as a positive, but without context, I certainly didn't take this as evidence that SQNM would win the MSJ hearing. After all, Judges play devils advocate all the time. A stray remark like that at the outset of a hearing doesn't mean that much. That is the context that is missing.
Yesterday, the courtroom minutes from the MSJ hearing were docketed. These are notes from the hearing kept by the Courtroom deputy. For those unfamiliar, the courtroom deputy is a clerk assigned to a particular Judge. They are the gatekeeper for most federal judges, they manage the court's calendar, they call the docket, they manage trial exhibits etc. They also normally keep the minutes of hearings. Illston's minutes are typically very circumspect. I uploaded them on the private board, here you will either have to find them on PACER or take my word for it. They are circumspect, but they reference the Ariosa MSJ with the note - "Tentatively denied" and the SQNM MSJ with the notation - "Tentatively Granted".
So, at the end of the hearing the courtroom deputy noted that SQNM had won. She's not the judge and the judge could change her mind in chambers, but this is the context missing from the article. This would be huge for SQNM.
Thanks Batman... In my opinion, Judge Illston ruled for Ariosa in the first go round, and then was told in fairly strong language by the Federal Circuit that Sequenom is being irreparably harmed and it doesn't matter if an injunction would put the offender out of business. The Federal Circuit claimed to offer no guidance on the issue of "subject eligibility" relative to the Supreme Court's Myriad ruling, but took the time to "educate" Illston on DNA vs cDNA patent eligibility.
For Illston to come out during the SQNM-Ariosa MSJ hearing and say she was "leaning toward Sequenom", was HUGE! That was a complete 180 degree shift, and would not have occurred if she wasn't using and obediently following the Federal Circuit remand to the letter.
Next on deck will be the injunction against Ariosa in January. But because Illston has now tipped her hand as a public servant obedient to her superiors; and after reading the Federal Circuit's remand regarding the irreparable harm being done to Sequenom by Ariosa, there is no question about the outcome in my mind. And if I had any VC interests in Ariosa, I'd be looking at my options about now.
I think the court clerk's experience with this judge, along with the judge's public statement in addition to the Federal Circuit remand from August; taken together this paints a very clear and compelling picture, and you don't have to be a psychic to figure it out.
This in my opinion will come down to Sequenom and Verinata. Worst case scenario for Sequenom is a cross license for them. But I have seen where there are opinions on line stating Sequenom will win out. Of course if that happens along with winning the patent case before the patent board look out. This price will look like the dollar stores prices. Cheap!
Sentiment: Strong Buy
rbattman/ The NEW Batman! Thanks for posting that. Again, to disclaim, its tentative but I now believe very telling!
Would you speculate ( and that is all it can be) about how a favorable outcome vs ariosa affects natera / verinata's positions vs. SEQ?
Thanks for posting that! Best news in a long long long long time!
Sentiment: Strong Buy
It might not be legally binding on them as non-parties to this litigation, but the liklihood that the same judge hearing the same legal issue (not factual issue) would rule differently in their lawsuits is extremely low. Remember this ruling (assuming the tentative ruling holds) is only that the 540 patent is a patentable subject matter. However, that is a pretty big issue in all of these lawsuits.