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Affymax, Inc. Message Board

  • intelligent_rat intelligent_rat Oct 7, 2010 8:36 PM Flag

    Why mediator got it wrong,,,

    First, here is the detail,,,
    Affymax said an arbitrator ruled that health care giant Johnson & Johnson is the sole owner of a patent related on erythropoietin receptor agonists

    If this is statement is right, then this patent will NOT stand up in court. You simply can not have a patent on a broad catagory of receptor agonists.

    You can patent a drug that affects the agonist,,,but NOT the target. Courts have ruled this way again and again. They uphold the drug patent but rule invalid the target patent.

    (You may argue that a company should be able to patent the target,,,but this is not how the courts read the law,,.).

    An exception seems to be in laboratory testing, but the trend is getting away from the "owning" of human targets, DNA, etc. For example, HGSI pretty much can not be valued on all the different genes they patented, because everyone knows they really don't own them. But HGSI can keep the info secret and sell the info to companies that would be interested in developing a patentable drug.

    J&J has previously blocked other companies from competing drugs by claiming the specific drug and method,,,NOT infringment of the target.

    If J&J takes it to court, then AFFY should be prepared to argue for summary judgment,,,which if the lawyer is half-assed, the court will grant. (ie: AFFY should not assume the judge will be familar with previous cases,,,AFFY does not want to lose and have to appeal).

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    • Good post. The pr reinforces your point. This ruling does not cover the validity or the infringement of the patents. Affy brought the case, as I understand, so they would not have sued or needed to sue if they stole a patent rather jnj would have sued them initially.

      I would also see Takeda (big brother) protecting it's investment and putting up a strong defense if jnj tries to unjustly rough up affy over hematide. Unlike jaggy's claim that this will be big boys trampling on little boys. JNJ knows that they will have a big player and not just small potatoes affy to contend with.

      • 1 Reply to toowan12
      • <<This ruling does not cover the validity or the infringement of the patents. Affy brought the case, as I understand, so they would not have sued or needed to sue if they stole a patent rather jnj would have sued them initially. >>

        What has people concerned is that this does appear to be a self-inflicted wound. If this IP is in fact neither relevent to Hematide nor valid as a patent...then why bother going down this road at all, let alone proleptically? Well...there was a dispute in play, so rather than risk the costs of a full-blown lawsuit, opting for the costs of binding arbitration proceedings was clearly the better choice.

        ---I tend agree however, with the lead post of this thread...Hematide's mechanism for binding the EPO-R does not fall under the patent properties at issue, and one cannot patent a target, only a mechanism for hitting that target.

        ...anyway, the real issue is the road to approval of Hematide...which is starting to look more promising, not less.

 
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