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« Senju Pharmaceutical Co. v. Apotex Inc. (Fed. Cir. 2014) | Main | House and Senate Bills Would Provide Incentive for Repurposing Old Biologics »

April 08, 2014

Comments

"Under his appreciation of the facts."

Kevin,

Are you suggesting (tongue in cheek) that Judge Dyk's "appreciation of the facts" is not the correct one?

It's hard to feel sorry for Actavis and Roxane. It wouldn't have taken much effort to include within the scope of the agreement "any patents that issue in the future that claim the benefit of" the '357 provisional; this would have taken care of the '122 and '216 patents. And with a little more thought they would have seen the wisdom of including "any patents that in the future issue to or are otherwise acquired by Endo" that claim "orally administrable formulations of oxymorphone or salts thereof or methods of orally administering oxymorphone or salts thereof", which would have taken care of both of those patents and '250 patent as well. While it's always easy to play Monday morning quarterback, I don't think inclusion of these terms was too much to expect; they are the sort of thing many of us have told our clients to include when taking licenses to patents. The lack of foresight in this case suggests that the attorneys for the defendants who negotiated the settlement of the original case did not have a background in patent prosecution.

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