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EXELA PHARMA SCIENCES, LLC v. LEE

No. 2013-1206.

781 F.3d 1349 (2015)

EXELA PHARMA SCIENCES, LLC, Exela Pharmsci, Inc., Exela Holdings, Inc., Plaintiffs-Appellants v. Michelle K. LEE, Deputy Director, U.S. Patent and Trademark Office, Defendant-Appellee. Cadence Pharmaceuticals, Inc., SCR Pharmatop, Intervenors.

United States Court of Appeals, Federal Circuit.

March 26, 2015.

Attorney(s) appearing for the Case

Matthew James Dowd , Wiley Rein, LLP, Washington, DC, argued for plaintiffs-appellants. Also represented by Claire Joy Evans ; Clarence Edward Polk, Jr. , Exela Pharma Sciences, LLC, Ashburn, VA; Anthony H. Son , Andrews Kurth, LLP, Washington, DC.

Dennis C. Barghaan, Jr. , Office of the United States Attorney for the Eastern District of Virginia, Alexandria, VA, argued for defendant-appellee. Also represented by Dana J. Boente ; Nathan Kelley , Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA.

Richard P. Bress , Latham & Watkins LLP, Washington, DC, argued for intervenors. Intervenor Cadence Pharmaceuticals, Inc., also represented by Gabriel Bell , Washington, DC; Stephen P. Swinton , San Diego, CA; Marc Nathan Zubick , Kenneth G. Schuler , Chicago, IL. Intervenor SCR Pharmatop represented by Charles A. Weiss , Holland & Knight, LLP, New York, N.Y.

Concurring opinion filed by Circuit Judge DYK.

This appeal presents the question of whether a third party has the right to challenge, by way of the Administrative Procedure Act (APA), a ruling of the Patent and Trademark Office reviving a patent application that had become abandoned by failure to meet a filing schedule established by the Patent Cooperation Treaty and its implementing statute...

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