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Novartis AG v. Ezra Ventures LLC

Patent Term Extension Not Limited by Obviousness-Type Double Patenting

Novartis AG v. Ezra Ventures LLC909 F.3d 1367 (Fed. Cir. Dec. 7, 2018) (Moore, CHEN, Hughes) (D. Del.: Stark) (3 of 5 stars)

Fed Cir affirms Hatch-Waxman judgment rejecting Ezra’s invalidity attack. The district court did not err in holding that obviousness-type double patenting does not invalidate an otherwise validly obtained patent term extension under § 156. The opinion discusses how Merck, 482 F.3d 1317 (Fed. Cir. 2007), leads to this holding, and rejects Ezra’s attempt to distinguish it. The opinion also rejects Ezra’s policy arguments. “This case does not raise the traditional concern with obviousness-type double patenting of a patent owner extending his exclusive rights to an invention through claims in a later-filed patent that are not patentably distinct from claims in the earlier filed patent. Here, it is the earlier-filed, earlier-issued ’229 patent, not the later-filed, later-issued ’565 patent, that has the later expiration date, due to a statutorily-allowed term extension under § 156.

KEYWORDS: HATCH-WAXMAN; PATENT TERM EXTENSION; OBVIOUSNESS-TYPE DOUBLE PATENTING