Fed. Circ. Offers Obviousness-Type Double Patenting Cure

Law360 (November 5, 2019, 1:33 PM EST) -- Obviousness-type double patenting is a judicially created doctrine under which the claims of an earlier-expiring reference patent are used as prior art to attack the claims of a later-expiring patent as patentably indistinct over the earlier expiring reference patent claims. 

Traditionally, there are two ways to address an allegation of OTDP: (1) disclaiming the term of the later-expiring patent exceeding the reference patent term or (2) arguing on the merits that the later-expiring patent claims are patentably distinct over the reference patent claims. 

Might there be a third approach? The U.S. Court of Appeals for the Federal Circuit’s recent decision in...

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