In Eli Lilly and Co. v. Teva Parenteral Medicines, Inc., C.A. 08-335-GMS (D. Del. Nov. 5, 2010), Judge Sleet recently decided an issue of first impression — what is the date the court should use to determine what constitutes prior art for purposes of defendants’ obviousness-type double patenting defense? Plaintiffs argued that while 35 U.S.C. § 102 governed what references constituted prior art, § 102 did not resolve “for purposes of an obviousness-type double patenting (“OTDP”) analysis the question . . . in light of the prior art as of what date?” Id. at 2 (emphasis in original). Judge Sleet rejected plaintiffs’ distinction between “the questions of ‘what’ and ‘when’” because adopting plaintiffs’ argument would “require the court to view some portions of [§ 102] as controlling while viewing others as irrelevant in the OTDP context.” Id. If the Federal Circuit intended such a result – excepting prior art in the OTDP context from the rules found in § 102 – it would have done so explicitly. Id. at 4-5.