Fed. Circ. Resurrects Hindsight Bias In Post-KSR World

By Don Mizerk and Rachael Casey (August 23, 2017, 1:36 PM EDT) -- In Millennium Pharmaceuticals Inc. v. Sandoz Inc., 862 F.3d 1356 (Fed. Cir. 2017), Federal Circuit Judges Pauline Newman, Haldane Mayer and Kathleen O'Malley overturned a district court's invalidation of a pharmaceutical patent. The Federal Circuit reversed a district court's holdings of obviousness and inherency regarding a pharmaceutical compound, using hindsight arguments explicitly rejected in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007).

The disputed compound is sold as a cancer treatment named Velcade. Its precursor bortezomib is a proteosome inhibitor with known stability problems. After failing to develop a suitable liquid formulation, researchers made an alternate form by lyophilizing...

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