A Return To Old Power Alley Topics: Organon / Nexplanon® “Implanted Contraceptive Matchsticks” Patents Edition…

We covered some Nexplanon® patent spats last. . . almost exactly seven years ago (after a June-end 2014 sushi luncheon suggestion, by a then loyal reader!). Since then of course, Merck has once again made Organon a separate public company traded under the symbol “OGN” on the NYSE — by a 2021 spinoff.

On Friday, some recently-filed patent litigation (in New Jersey federal district court) was dismissed by agreement, with leave to refile — if the would-be settled terms fall through. But it seems the parties have agreed to a settlement, here — one that likely does not involve Organon paying anything to Microspherix. That is so because as the declaratory judgment complaint lays out. . . the Kaplan patents really have nothing to do with birth control, and in any event, Organon invented its device long before Dr. Kaplan even claimed to think of the idea of direct implanted cancer fighting radioactive pellets. Here’s that bit, for posterity:

. . .Notwithstanding Microspherix’s attempts to manipulate and stretch its patent disclosures to try to cover Nexplanon®, those disclosures — directed to the opposite approach from a systemic contraceptive implant such as the Nexplanon implant — simply cannot stretch far enough. None of the claims of the ’058 Patent actually cover Nexplanon, for many reasons. Among them, the Nexplanon implant is not a brachytherapy implant; it is not used to treat cancer or any other disease; and it is not implanted into any diseased tissue for localized treatment. Rather, the Nexplanon implant is a contraceptive device implanted into the arm for systemic release of a hormone into the bloodstream for circulation through the entire body — the exact type of drug delivery method that Microspherix distinguishes from its patents. . . .

Microspherix’s patents for brachytherapy seeds do not apply to Nexplanon implants; they apply to localized cancer treatment seeds or strands. And even if the Kaplan Patent Family could be contorted to cover something beyond localized treatment of cancer (they do not properly stretch so far), Merck independently made the Nexplanon® implant for the systemic delivery of contraceptive hormones, and did it before Dr. Kaplan ever thought of it. . . .

Onward — so it goes. The skies are gray here, but warm — and in two months’ time now, some 45 of us direct descendants will gather in the mountains to remember one who passed during the first days of the pandemic. . . and I am smiling, as I plan it. . . onward. It is the train afterall that moves, not the station. . . .


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