Fed. Circ.'s Approach To Unexpected Results In Pharma Cases
By Francis C. Lynch (May 26, 2017, 11:35 AM EDT) -- There have been many obviousness challenges to pharmaceutical patents since the generic industry began contesting the validity of patents protecting brand company products under the Hatch-Waxman framework. In many, patentees have presented evidence of unexpected advantages or properties of claimed inventions in support of nonobviousness. This article describes the Federal Circuit's initial use of such unexpected results to support the nonobviousness, with a focus on the first wave of Hatch-Waxman appeals in obviousness challenges; the principal ways used by Federal Circuit panels in recent years to refuse to give asserted unexpected results in pharma cases significant weight in the obviousness inquiry; and the likelihood that these ways will be used by panels in the future....
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