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« Court Report | Main | Biotech/Pharma Docket »

April 20, 2009



In my view, Judge Rader got it right (or at least better than Judge Schall). Rader's view is more in step with the purpose behind the obviousness-type double patenting doctrine. Allowing "distinctiveness" to reflect what has happened up to the filing date of the later application is also more in line with the "filing date" language of 35 USC 103, from which obviousness-type double patenting doctrine gets at least some of its roots.

ORDP is a dinosaur and should be eliminated. 20 years from non-provisional priority date. If you are claiming the same non-provisional priority date, then the "unjustified extension" nonsense is just that - nonsense. How can the courts continue to overlook this very basic issue? And the applications are not in the same continuity group, then it's regular old 103.

Obviously, I meant OTDP there. Sorry.

I am trying to follow your logic and lost my way. How can you have the product patent expire in year 18, and then in year 19 a new application filed that has proper co-pendency with the now expired patent?

Dear bread:

Sorry, my earlier response seems to have disappeared into the blog ozone.

I think what the court was saying is that if you have a product patent and a pending continuation for a process patent claiming priority to the product patent, under the 17 year regime the product patent could expire at year 18, and the product + process would be in the public domain. Then a year later the process patent would issue and the process would be pulled out of the public domain.

Hope this helps. Thanks for the comment.

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