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Boehringer Ingelheim International GmbH v. Barr Laboratories, Inc.

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Before LINN, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge LINN. Opinion dissenting-in-part filed by Circuit Judge DYK.

This is a patent infringement case involving the effectiveness of a terminal disclaimer to overcome obviousness-type double patenting and the safe-harbor provision of 35 U.S.C. § 121. Boehringer Ingelheim International GmbH and Boehringer Ingelheim Pharmaceuticals, Inc. (collectively “Boehringer”) appeal from a final judgment that Boehringer’s U.S. Patent No. 4,886,812 (the “’812 patent”) is invalid for obviousness-type double patenting. Boehringer Ingelheim Int’l GmbH v. Barr Labs., Inc., No. 05-CV-700 (D. Del. Sept. 18, 2008); Boehringer Ingelheim Int’l GmbH v. Barr Labs., Inc., 562 F. Supp. 2d. 619 (D. Del. 2008). Because the district court incorrectly concluded that the safe-harbor provision of 35 U.S.C. § 121 is inapplicable in this case, we reverse and remand.

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