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PHOTOCURE ASA v. KAPPOS

No. 2009-1393.

603 F.3d 1372 (2010)

PHOTOCURE ASA, Plaintiff-Appellee, v. David J. KAPPOS, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

May 10, 2010.

Attorney(s) appearing for the Case

John W. Bateman, Kenyon & Kenyon LLP, of Washington, DC, argued for plaintiff-appellee. With him on the brief were Richard L. DeLucia and Lawrence H. Frank, of New York, NY.

Scott R. McIntosh, Trial Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Tony West, Assistant Attorney General, Dana Boente, Acting United States Attorney, and Howard S. Scher, Attorney. Of counsel on the brief were James A. Toupin, General Counsel, Office of the General Counsel, United States International Trade Commission, of Washington, DC, and Raymond T. Chen, Deputy General Counsel and Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Arlington, VA.

Before NEWMAN, RADER and LINN, Circuit Judges.

NEWMAN, Circuit Judge.

This case concerns the applicability of the statute governing patent term extension, 35 U.S.C. § 156, to the drug product having as its active ingredient the chemical compound methyl aminolevulinate hydrochloride ("MAL hydrochloride"), brand name Metvixia®. The Director of the United States Patent and Trademark Office (PTO) denied the extension, and Photocure sought review in the district court under the Administrative Procedure Act...

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