In my post of May 6, 2011, I discussed the facts in some detail in this controversial Fed. Cir. decision and concluded that the majority of the Fed. Cir. got this one wrong – the court voted 5-4 to deny rehearing en banc. Although Lilly had prosecution strategies available that would have avoided invalidation of their patent on a newly discovered use of gemcitabine, Lilly picked the wrong one. All practitioners should re-read this decision so as to not fall into the same trap. Ironically, this is an appeal in which Supreme Court review likely would have helped the patent system.
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Warren D. Woessner