Fed. Circ. Won't Rehear Merck Temodar Patent Case

Law360, New York (February 28, 2011, 7:56 PM EST) -- The Federal Circuit on Monday denied a bid for en banc rehearing of its November decision that a Merck & Co. Inc. patent for brain tumor treatment Temodar could be enforceable.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit's decision improperly weakened the U.S. Supreme Court’s legal test for prosecution laches by requiring evidence of intervening rights, Judge Sharon Prost wrote in an opinion for five dissenting judges.

Consequently, it encourages applicants to keep prosecution open and reshape their claims to...
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