It has been tough sledding recently in the Court of Appeals for the Federal Circuit for some pharmaceutical patent owners. In three recent decisions, each pharmaceutical patent considered by the Federal Circuit was invalidated. But these cases also give insight on some important issues. The first two decisions address how the Federal Circuit reviews evidence and determinations of obviousness by the Patent Trial and Appeal Board (PTAB) in post-grant proceedings governed by the America Invents Act (AIA). The third decision clarifies a debate among the patent bar as to whether the AIA changed the law regarding the “on-sale” bar by overruling prior case law as to so-called “secret sales.” This article reports on these recent Federal Circuit decisions.

‘Novartis AG v. Noven Pharma.’

On April 1, 2017, the Federal Circuit affirmed a PTAB decision during inter partes review finding that claims-at-issue in two patents asserted by Novartis were obvious in view of the prior art. On appeal, Novartis argued that the PTAB erred in reaching a different conclusion than the Federal Circuit and the Delaware District Court in two prior opinions, which addressed the “same” arguments and evidence and found the same claims-at-issue not to be obvious. Novartis also argued that the prior art references could not properly be combined to support obviousness.

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