Bavarian Nordic explains further on the ITC’s Initial Determination. Invitation to conference call
Bavarian Nordic’s counsel has got access to the full decision of the Administrative Law Judge at ITC. This decision is still confidential. The issue of validity turns on a claim construction made by the judge, who in our opinion is incorrect and not supported by the patent claims, the patent description or the prosecution history. Bavarian Nordic is confident that this claim construction will not be upheld by the full ITC Commission or the Court of Appeals for the Federal Circuit.
Moreover, while Bavarian Nordic is confident that the full Commission will find its patents valid, even a final adverse decision will have no impact on the validity of the patents, since decisions of the ITC are not considered binding on a US Federal Court who ultimately rule on the validity on patents. A final determination of invalidity by the ITC would only mean that Acambis will not be barred from importing the MVA 3000 product to the US.
Bavarian Nordic intends to proceed with its now pending claims in the US Federal Court in the District of Delaware. These claims accuse Acambis of conversion and unfair competition with respect to how Acambis came into possession of a viral product, owned by Bavarian Nordic, which was necessary for them to create the infringing MVA3000 product. Recently the judge in Delaware denied Acambis’ motion to add several counterclaims against Bavarian Nordic, which they have publicly referred to. Accordingly, Acambis’ attempts to do so failed and they are now prevented from arguing such claims or allegations in the Delaware case.
Bavarian Nordic invites to conference call Monday, 11 September 2006 at 1.00 PM (GMT+1) to discuss main points from the Initial Determination.
