Gilead And Potential Unforeseen Consequences: Part 2
Law360, New York (August 26, 2014, 9:40 AM EDT) -- In Part 1 of this article, we explored the majority's rationale for obviousness-type double patenting ("ODP") in the Court of Appeals for the Federal Circuit's decision in Gilead Sciences Inc. v. Natco Pharma Ltd., No. 2013-1418 (Fed. Cir. Apr. 22, 2014). In particular, we considered the Gilead majority's holding that the decision of which of two qualifying post-URAA patents is the ODP reference patent, and which is the patent that is subject to ODP in view of the other, turns on the patents' relative expiration dates, which are predicted from their respective "earliest non-provisional filing dates,"[1] and not on the patents' relative issue dates. We also examined the majority's public policy concern for "gamesmanship" that could theoretically flow from using issue dates as the deciding criteria in determining the ODP relationship between two patents....
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