On Monday, the Supreme Court granted cert. in the somewhat overlooked panel decision, Teva Pharm., Inc. v. Sandoz, Inc., 727 F.3d 1363 (Fed. Cir. 2013)(Sup. Ct. 13-854) (a copy can be found at the end of this post). Most commentators had predicted that the Supreme Court would review the en banc decision in Lightning Ballast, but it is not to be.
The panel, Judge Moore writing (who at least has taken some chemistry courses), reviewed a district court decision that had found two groups of claims from eight Teva patents on Copaxone valid. Defendants in this Hatch-Waxman litigation had argued that both the Group I and Group II claims failed s.112(2) as insolubly ambiguous due to multiple definitions of the molecular weight in the specification. The district court, construed the term “molecular weight” as determined by a single methodology and so disagreed as to both sets of claims.