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« USPTO Publishes Notice Regarding Enhanced Examination Timing Control Initiative | Main | Myriad Appeals AMP v. USPTO Decision »

June 15, 2010

Comments

Andrew,

Very interesting. What I find somewhat surprising is that the later Ortho-McNeil Pharm v. Lupin Pharm case doesn't cite Photocure even though Judge Newman authored both opinions. Photocure seems to raise similar issue to that decided in Ortho-McNeil, namely what is the "active ingredient" in the drug for which patent term extension is being sought.

EG,

Good point. Obviously Ortho-McNeil and Photocure are consistent with each other, and in fact Ortho-McNeil supports the position that what is important for determine whether something is a "new drug" is the requirement for separate patentability and separate regulatory approval. In the end, I worry that the Federal Circuit may have gotten themselves into a logical trap with Photocure that they will need distinguish (or ignore) the next time this issue comes up. Thanks for your comment.

Andrew

More interesting: How will/should Photocure and the Court's application and interpretation of 156(a)/156(f) influence its application of 156(b) After all, the same statutory term 'product' is employed in both subsections, suggesting that Congress meant to link the scope of rights provisions with and the availability of the PTE.

They shouldn't be too worried about taking on Kappos and company. He obviously just rolls over everytime someone files against him.

Hm . . . the PTO accepts the FDA's position, argues and loses in the District Court, and then appeals (and loses again) before the Federal Circuit.

What wouldn't constitute "rolling over" for you, 6? Do you think the Office should file a petition for cert?

The comments to this entry are closed.

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