The panel majority held that 'a first-filed, first-issued, later-expiring claim cannot be invalidated by a later-filed, later-issued, earlier-expiring reference claim having a common priority date.' This ruling has been widely criticized as it contradicts established patent law principles.
The AAM brief contends that by categorically exempting first-filed, first-issued patents from ODP challenges based on obvious variants, the panel eliminates the requirement for terminal disclaimers in many cases. This allows patentees to separate ownership of admittedly obvious variants, which AAM argues is contrary to longstanding precedent preventing 'multiple infringement suits by different assignees asserting essentially the same patented invention.'
Both amicus briefs argue that the panel's ODP holding creates significant loopholes that undermine the doctrine's core purposes. It could severely hinder generic competition by making it easier for brand-name companies to exploit such loopholes.
#patent-law #obviousness-type-double-patenting #generic-competition #federal-circuit #allergan-v-msn
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