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Federal Circuit Imperils Term-Adjusted Patents
The Federal Circuit recently upheld the Patent Office's decision to reject claims in four separate reexamination cases due to obviousness-type double patenting (ODP). In re Cellect, LLC, Appeal Nos. 22-1293, -1294, -1295, -1296 (Fed. Cir. Aug. 28, 2023). This decision is important because it expands ODP, a doctrine judges developed long ago, when patents received a term of 17 years from the date of issue, rather than 20 years from the date of filing. Unless overturned by the Supreme Court, this decision will significantly affect patent families that have patents with different expiration dates. This article explains some of the decision's consequences and explores potential patent prosecution strategies.
What transpired in Cellect was not entirely surprising after the court's 2014 decision in Gilead Sciences, Inc. v. Natco Pharma Ltd., 753 F.3d 1208 (Fed. Cir. 2014). In that case, Gilead Sciences sequentially filed separate patent applications, leading to patents with different expiration dates, claiming inventions that were obvious variants of each other. The relevant facts are illustrated below.
Unrelated Patents in Gilead Sciences
On these facts, the Federal Circuit concluded that the earlier-expiring '375 patent can serve as an ODP reference against the family-unrelated and later-expiring '483 patent, despite the '375 patent being issued after the '483 patent. The Federal Circuit explained that it's the expiration dates, not the issue dates, that dictate whether ODP may apply. Id. at 1215. Through that explanation, Gilead Sciences introduced new law.
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