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The Intellectual Property StrategistColumns & DepartmentsIntellectual PropertyLitigationPatent Licensing and TransactionsPatent Litigation

IP News

By Jeff Ginsberg and J. Jay Cho
July 01, 2023

Federal Circuit Examines the Analogous Art Test

On May 9, 2023, a Federal Circuit panel consisting of Judges Reyna, Mayer and Cunningham issued a precedential opinion, authored by Judge Cunningham, in Sanofi-Aventis Deutschland GmbH v. Mylan Pharm. Inc., Case No. 2021-1981. Patent owner Sanofi appealed from an inter partes review (IPR) Board's decision finding Sanofi's U.S. Patent No. RE47,614 (the "614 Patent") invalid as obvious, arguing that Mylan failed to assert that a prior art reference is analogous to the challenged patent and instead asserted that the reference is analogous to another prior art reference. Slip Op. at 2. The Federal Circuit agreed finding that the analogousness test was not based on the challenged patent and, therefore, Mylan did not meet its burden of establishing obviousness. Id. As a result, the Federal Circuit reversed the Board's decision.

Sanofi's 614 Patent relates to a drug delivery device that can be configured to allow setting of different dose sizes by using a "spring washer" that can exert a force on the cartridge and secure the cartridge against movement. Id. at 2-3. All claims of the 614 Patent require a "spring washer" secured by "at least two fixing elements." Id. at 3.

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