Obviousness-Type Double Patenting in the Spotlight Again I recently wrote a Patently-O post about an interesting district court decision related to obviousness-type double patenting (OTDP) in the pharma space. The case - Acadia Pharms v. MSN Pharms - involves Acadia's Parkinson's drug Nuplazid and competing summary judgment motions about whether the patent covering the drug should be invalidated based on OTDP. The court ended up siding with Acadia and putting forth two two justifications: 1. No "Patricide" Allowed: The court held that a later-filed, later-issued patent generally cannot serve as an OTDP reference to invalidate an earlier one -- even when the earlier has a later expiration date. 2. Divisional Application Safe Harbor: The court also ruled that the allegedly invalidating patent qualified for the divisional application safe harbor even though its divisional status was not formalized until after the statutory safe harbor date. This case highlights some unsettled nuances around obviousness-type double patenting - especially regarding patent terms, filing dates, restriction requirements, and the 121 safe harbor. It will likely be appealed to the Federal Circuit, so we may see new precedent established. The case also includes a contingent terminal disclaimer filed by the patentee. https://lnkd.in/gSZzPPNP What are your thoughts on the issues here?
It seems high time to end the loopholes. If it's obvious over another application, particularly one the applicant controls, it's obvious.