AF said that DVAX isn't addressing the patent issue at hand, I believe Cowen & Company addressed it best from their updated report on 10/08/2012.
"Discussions over Heplisav IP continue, litigation likely,
Management indicated that Dynavax is in ongoing discussions with Merck and GSK over their hepatitis B surface antigen patients, as it has been for the last several years. Management characterized the discussions as very "very friendly, very business like." Nonetheless, Dynavax thinks is unlikely that it will be able to secure a license to the IP prior to approval, as the benefits to such a license to Merck and GSK are hard to discern. Dynavax also thinks it a near certainty that Merck and/or GSK will initiate a lawsuit upon Heplisav's FDA approval, since their IP rights will lapse soon after approval if they are not asserted. Therefore, Dynavax expects there will be need to be an initial round of litigation before the matter can be settled. Given that litigation is likely, it would seem possible that Dynavax might initiate a lawsuit first to seek injunctive relief, rather than simply wait for MRK or GSK to file a suit. Dynavax thinks it very unlikely that Merck or GSK will be granted, or even seek, a preliminary injunction to prevent the marketing of Heplisav, as they think the case would not meet the four criteria necessary for a preliminary injunction (likelihood to prevail, irreparable harm, balance of harms, and public interest). Ultimately, Dynavax continues to expect that the matter will be resolved by Dynavax paying a single digit royalty on Heplisav sales."
I believe AF only stated what he did because he is just looking into DVAX, from his online meeting last week during Sandy, when asked about DVAX his response was he doesn't follow it. But he is absolutely right that this vaccine should dominate the market for Hep B by far, and I believe DVAX is taking the right route to a buyout rather than sitting around without preparation of launching themselves in case a buyout doesn’t happen. Many other companies that have taken the other route are now forced to launch their products late and loosing big on their market cap. DVAX is doing everything right... Huge buying opportunity here ahead of the panel.