• Apr 26 2019
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  • Category: CAFC Updates

Neptune, Fresenius, and Mylan appeal the Patent Trial and Appeals Board’s inter partes review (“IPR”) decisions holding Petitioners did not establish that claims of Eli Lilly’s U.S. Patent No. 7,772,209 (relating to administering folic acid and a methylmalonic acid (“MMA”) lowering agent before administering pemetrexed disodium, a chemotherapy agent, in order to reduce the toxic effects of pemetrexed) are unpatentable for obviousness. The CAFC affirms, finding that substantial evidence supports the Board’s findings that a skilled artisan would not have been motivated to administer an MMA lowering agent, such as vitamin B12, in addition to folic acid. The CFAC also notes that Congress expressly limited the scope of inter partes review to a subset of grounds that can be raised under 35 U.S.C. §§ 102 and 103, and therefore refuses to consider the issue of subject matter eligibility which arises under §101.

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