Two cases being argued in July at the Federal Circuit attracted amicus briefs. One of those cases is Sun Pharmaceutical Industries, Inc. v. Incyte Corporation. In this case, the Federal Circuit will review a decision by the Patent Trial and Appeal Board that the inter partes review petitioner “has shown by a preponderance of the evidence that the challenged claims are unpatentable.” Notably, in this case, Sun Pharmaceutical Industries was substituted for Concert Pharmaceuticals as the appellant to reflect a recent merger. This is our argument preview.
In its opening brief, Sun Pharmaceutical Industries argues “[t]he official who denied [Sun]’s request for Director review was not a properly appointed principal officer.” It also contends the “Board applied the wrong legal standard to both the ‘motivation’ and ‘reasonable expectation’ components of the obviousness inquiry” and that it “erred in disregarding two objective indicia of nonobviousness.”
The government argues in its “brief for intervenor” that the constitutional challenges made by Sun have already been rejected by Federal Circuit. In its response brief, Incyte Corporation asserts the Board correctly applied precedent and also correctly “weighed the parties’ arguments and evidence [when it] determined that the challenged claims would have been obvious to a skilled artisan.”
Sun Pharmaceutical Industries asserts in its reply brief that the facts of the case are undisputed and the dispute with respect to obviousness is “over the legal significance” of the facts. It further argues Incyte Corporation does not address the “key issue” regarding “whether a skilled artisan would have expected” the effect on the pharmacokinetic properties in question. Further, Sun reasserts, “the Board’s legal analysis was flawed” and the “legal errors require reversal.”
An amicus brief in support of Sun Pharmaceutical Industries was filed by Bald Girls Do Lunch, which emphasized how a “long-felt, unmet need” was satisfied “by the innovative . . . treatment claimed in” the appellant’s patent.
This case will be argued on Monday, July 10. We will report on any developments.