Daniel B. Ravicher’s Response to Qsymia Patent Report: Why Reasonable People Hate Ethically-Challenged Lawyers

by bobbydiggs

On July 31, 2012, Mr. Ravicher was published in a Seeking Alpha piece entitled, “Report Raising Vivus Qsymia Patent Infringement Concerns Was Not Competent.

As a general matter, I am more impressed with the intellectual content of messages that I find scribbled on bathroom walls than I am with what is posted on Seeking Alpha, but then again I expect the editorial policies and the selection process for the writers to be more stringent for those taking a pen to bathroom walls.  Even against this underwhelming background, Mr. Ravicher’s work is a disappointment.

The central thesis of the piece, and indeed its headline is that the Citron Research report on Vivus’ patent position is not “competent”.  That sounds bad, doesn’t it? A casual reader might conclude that Mr. Ravicher was saying that Citron research is wrong, but that is not the case at all.  In fact, Mr. Ravicher specifically states:

 I’m not even saying the conclusions reached by that portion of the report [the only portion he focuses on] are necessarily incorrect. Nor could I, as I have not myself yet performed an analysis of the potentially infringed patent.

Then later in his piece Mr. Ravicher states:

 Again, I’m not saying the report is necessarily wrong, and that Qsymia has nothing to fear in terms of the Shank ‘537 patent. It’s entirely possible that the Shank ‘537 patent is valid and infringed by Qsymia.

Ok, if he is not saying the Citron report is wrong or that he has even analyzed the questions raised by the portion of the report he is focused on, what the hell is he saying?

Mr. Ravicher is apparently reviewing the legal basis for a finding of legal competence for a patent opinion by a federal court.  In patent litigation, if an accused infringer is found to have known that a patent exists and is valid, and the infringer is found to have decided to engage in the infringing activity irrespective of the patent, then the accused infringer may be found to have engaged in willful infringement and can be liable for treble the normal damages consistent with 35 USC 284.

One way of avoiding a finding of willful infringement is for an accused infringer to have obtained a competent legal opinion from a patent attorney prior to engaging in the suspect activity.  Such an opinion would need to conclude that the suspect activity either will not infringe the patent concerned or that the patent would otherwise be found by the courts to be invalid or somehow unenforceable.

What does this arcane legal standard have to do with whether Vivus’ drug Qsymia infringes the Shank patent owned by J&J and therefore creates a significant business problem for Vivus?  

Absolutely nothing!

Mr. Ravicher’s piece would be slightly relevant if anyone on the planet were stupid enough to believe that all of the following were true:

  1. that Andrew Left is a practicing patent attorney;
  2. that Vivus was Mr. Left’s client;
  3. that Mr. Left’s Citron research piece provided Vivus with an opinion that Qsymia did NOT infringe the Shank patent or that the Shank patent was invalid or otherwise unenforceable against Vivus’ Qsymia product; and
  4. that a Citron Research blog is a formal legal opinion.

None of those things is true, nor is anyone who follows the Vivus patent story seriously in danger of believing one, let alone all four of them.

Mr. Ravicher’s piece of “analysis” is about as useful to the average Vivus investor as a thorough discourse on how many angels can dance on the head of a pin.  I believe Mr. Ravicher’s attempt to sell his report to people prior to the publication of the Seeking Alpha piece was cynically designed to make prospective buyers believe he had something useful to add to the Vivus patent story, when he himself knew he didn’t.  In his own words:

 I’ve put that question [the relevance of the Shank patent] on my to-do list and hopefully will be able to spend time looking into it shortly. For now, all I’m saying is that the report’s opinion that there is substantial risk Qsymia infringes the Shank ‘537 patent is not competent or reliable under the law.

I am not an expert on legal ethics or legal competence, but if you are going to use the plain meaning of the words, I believe Daniel B. Ravicher is a pedantic weasel and a shyster lawyer.