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<i>Gilead Sciences, Inc. v. Natco Pharma Ltd. </i>

By Matthew Siegal, Irah H. Donner

Upon issuance, can a later-issued (but earlier-expiring) patent qualify as a double patenting reference against an already issued (but later-expiring) commonly owned patent of the same inventor? In Gilead Sciences, Inc. et al. v. Natco Pharma Ltd., 2014 WL 1584450 (Fed. Cir. Apr. 22, 2014), the Federal Circuit held that it could.

The court held that although a terminal disclaimer could preserve the validity of the earlier-issuing patent, it would shorten that earlier-issuing expiration date to the expiration date of the later-issuing patent. Had the later-issuing patent never issued, the earlier-issuing patent would have enjoyed its full term. Nevertheless, the majority found a basis for this seemingly unusual result. Chief Judge Rader's dissent characterized the decision as new judicially created grounds of double patenting.

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