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Daniel B. Ravicher  

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  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    If Judge Stark rules for Avanir, he likely will issue an injunction to bar entry during any appeal by the generics. If he rules for the generics, he likely will not issue an injunction. Thus, the issue of an injunction on appeal collapses into the issue of which side he rules for. It's not a separate issue to consider.

    As for what Avanir may do upon permanent entry of a generic, that's a complicated analysis and different pharmaceutical companies do different things. Few concede the market and go generic themselves. Most will cut off all advertising and sales spending, but maintain their brand version of the drug, while perhaps also authorizing one generic manufacturer. It's a very complicated and dynamic analysis.

    If Avanir has FDA exclusivity, they need not also have patent exclusivity. Either one can bar entry of a generic competitor. So, I do indeed expect them to continue to seek FDA based exclusivity, such as orphan drug status.
    Jan 13, 2014. 10:33 AM | Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    Your previous post said that a subsequent panel of the Federal Circuit hearing an appeal of the Avanir case would not be bound by the Galderma decision. I said that was 100% wrong, because it is. The subsequent panel of the Federal Circuit is bound to follow Galderma unless and until it is reversed either by the Federal Circuit en banc or the Supreme Court. This is basic fundamental law. You are entirely confused and wrong. It is not arguable.

    As for my suit against Mr. Icahn for aiding and abetting the Herbalife fraud, yes, it is still pending. I'm not sure what that has to do with Avanir, though.
    Jan 11, 2014. 03:28 PM | Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    OFP, The statement "Galderma could not have been reversed had the burden of proof not shifted" is untrue. The fact that it was reversed and that there was a burden of proof shifted there, does not mean that the shifting burden of proof is requisite for a finding of obviousness. I also disagree that any of the findings here were "surprising." Indeed, I think they were obvious. So, again, we disagree, and that's fine, as disagreement makes a market.
    Jan 9, 2014. 01:42 PM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    OFP, I don't disagree with you that the Galderma decision is relevant. I do disagree with you in what way it is relevant and what impact it will have. You somehow think that the Court of Appeals reversing Judge Stark in that case is actually good for Avanir. I disagree. I note that you then point out it was a split decision, so is that your hedge admitting it's bad for Avanir? I can't truly understand your position. Regardless, you are welcome to have your opinions. That's what makes a market. As for burden of proof, I do not argue that the burden has been shifted to Avanir, as the Court of Appeals said it was to Galderma. Had I made that argument, you could rightly criticize it. Rather, I said the fact that Judge Stark was reversed by the Court of Appeals signals to him that he needs to rethink his perspective on the issue of obviousness for pharmaceutical patents and that it was a good decision for the generics in this case.
    Jan 9, 2014. 09:27 AM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    Tradestoxx, You are welcome to disagree with me and adopt Avanir's arguments. That is your right. Trade as you see fit and I will do the same. I wish you the best.
    Jan 9, 2014. 09:23 AM | 2 Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    With all do respect, you are obviously not a lawyer. Your statement "a different panel hearing Avanir would not be bound by the Galderama panel's decision" is 100% entirely incorrect. The Galderma decision is a decision of the Federal Circuit and from now on, unless and until that decision is overruled by the entire FedCir en banc or the Supreme Court, it is binding precedent on all other Federal Circuit panels, including what ever panel hears the ultimate Avanir appeal. So, to repeat, you are completely entirely unarguably wrong.
    Jan 9, 2014. 09:22 AM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    Policy issues have no impact on my opinions. What I think the law should be is irrelevant to what it is. And, yes, the Yakatan disclosures were sufficiently public to be considered prior art.
    Jan 8, 2014. 10:47 PM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    You have to ask the Seeking Alpha editors why your comment was deleted. Only they have the power to do that. I cannot delete any comment.
    Jan 8, 2014. 10:40 PM | Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    If the case was good for Avanir, why didn't they bring it to Judge Stark's attention? And why would the generics do so if it was bad for them?
    Jan 8, 2014. 10:39 PM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    You don't know the terms of settlement, so you can't possibly know if they settled from a position of strength or weakness. Further, later generic filers often settle because they have reason to spend resources on the case when they would not be entitled to the 180 days given to the first challenger. So, the settlements have no probative value on the merits of the case.
    Jan 8, 2014. 10:37 PM | Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    How is the issue of my employment relevant to this article? If you'd like to make a substantive response, please do. If you wish to make a personal attack, save it. Indeed, resorting to personal attacks only proves you cannot discredit the substance of my article.
    Jan 8, 2014. 10:35 PM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    The '115 patent does not exclude use for PBA. It merely requires effectiveness in treating pain. Therefore, it is incorrect to say the '115 patent does not cover use for treating PBA.
    Jan 8, 2014. 10:33 PM | Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    You are correct that I did not, in my article, raise every single piece of evidence and every single argument made by the parties. I do link to all the briefs, which no one else had done for the public, so people can read them if they want. The point of an article like this is to summarize the matter, highlight the most important points, and provide my opinion. I did that. You disagree with me, which I can respect. But, also note, even if I am wrong about the '115 patent, it expires in two years any ways.
    Jan 8, 2014. 10:26 PM | 1 Like Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    You do not know your FRAP or Federal Circuit Rules. If a petition for rehearing is filed, the same panel would decide whether to grant it, and then the same panel would hear it again. There's a very very small chance of that happening. A petition for rehearing en banc would be decided by the entire active bench and, if granted, would be heard by all active judges, but that would not be called a panel, since it would be the en banc. The only other option would be for Galderma to petition to the Supreme Court to take the case and reverse the Federal Circuit's decision. Each of those is highly unlikely. But, if you want to maintain the opinion that my analysis is premature, that's your right. A difference of opinion is what makes a market.
    Jan 8, 2014. 10:23 PM | Likes Like |Link to Comment
  • Expected Decision In Avanir Nuedexta Patent Litigation [View article]
    That is a distinction between the two cases, but not one that I think makes the Galderma decision by the Federal Circuit in any way good for Avanir. Indeed, I stand by my opinion that the Federal Circuit's reversal of Judge Stark's decision that those other pharmaceutical patents were not obvious is helpful to the generic challengers in this case. I actually quite amused that people are even arguing it's a good decision for Avanir.
    Jan 8, 2014. 10:19 PM | Likes Like |Link to Comment
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