Judge Andrews issues post-trial ruling invalidating patent for obviousness-type double patenting

Judge Andrews recently found the asserted claims of one asserted patent invalid for obvious-type double patenting after a four day trial on three asserted patents. Novartis Pharmaceuticals Corp. v. Breckenridge Pharmaceutical, Inc., et al., C.A. Nos. 14-1043-RGA, 14-1196-RGA, and 14-1289-RGA (D. Del. Apr. 3, 2017).  The Court found that the earlier-expiring post-URAA patent (the ‘990 patent) could serve as a double patenting reference for a later-expiring pre-URAA patent (the asserted ‘772 patent), relying on the BPIA decision in Ex Parte Pfizer, Inc. Patent Owner & Applicant, 2010 WL 532133, at *6 (Bd. Pat. App. & Interf. Feb. 12, 2010) (cited in Gilead Sciences, Inc. v. Natco Pharma Ltd., 753 F.3d 1208, 1212 (Fed. Cir. 2014)), as well as several other district court decisions.  Judge Andrews found that the defendants failed to meet their burden to invalidate the other two asserted patents, which the plaintiffs proved were infringed.

Novartis Pharma Corp. v. Breckenridge Pharma Inc., C.A. No. 14-1043-RGA (D. Del. Mar. 30, 2017)

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