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Lilly Asks High Court To Review Double Patenting

Law360 (February 9, 2011, 7:02 PM EST) -- Eli Lilly & Co. has petitioned the U.S. Supreme Court to review the Federal Circuit's ruling that the drugmaker's patent for cancer treatment Gemzar was invalid for double patenting, saying the appeals court wrongly applied an entirely new standard.

The U.S. Court of Appeals for the Federal Circuit created a new “bright-line” rule that invalidated a subsequent patent on a nonobvious, newly discovered use of a basic invention solely because it was disclosed, not claimed, in the final text of the earlier basic patent, according to Lilly's Jan. 28 petition for writ of certiorari made public Wednesday.

In doing so, the...

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