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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This blog, Patents4Life, does not contain legal advice and is for informational purposes only. Its publication does not create an attorney-client relationship nor is it a solicitation for business. This is the personal blog of Warren Woessner and does not reflect the views of Schwegman Lundberg & Woessner, or any of its attorneys or staff. To the best of his ability, the Author provides current and accurate information at the time of each post, however, readers should check for current information and accuracy.