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TAKEDA PHARMACEUTICAL CO., LTD. v. DOLL

No. 2008-1131.

561 F.3d 1372 (2009)

TAKEDA PHARMACEUTICAL CO., LTD., Plaintiff-Appellee, v. John J. DOLL, Acting Under Secretary of Commerce for Intellectual Property and Acting Director, United States Patent and Trademark Office, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

April 10, 2009.

Attorney(s) appearing for the Case

Harold C. Wegner, Foley & Lardner LLP., of Washington, DC, argued for plaintiff-appellee. With him on the brief were Stephen B. Maebius, Leon Radomsky, and C. Edward Polk, Jr.

Sarang Vijay Damle, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief was Scott R. McIntosh, Attorney. Of counsel on the brief was William G. Jenks, Associate Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Arlington, VA. Of counsel were Raymond T. Chen, Solicitor, and Shannon M. Hansen, Associate Solicitor.

Opinion by the court filed by Circuit Judge RADER. Opinion concurring-in-part and dissenting-in-part filed by Circuit Judge SCHALL.

RADER, Circuit Judge.

The United States District Court for the District of Columbia held that later developments in the art may inform the "patentably distinct" determination for double patenting. Double patenting doctrines and case law permit this court to agree in part, but only to the extent that the subsequent developments predate the secondary application that triggers a double patenting rejection. Because genuine issues of fact cloud the date of availability...

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