Here is an update on recent en banc activity at the Federal Circuit in patent cases. This week’s highlight is the denial of a petition for rehearing en banc in a patent case presenting three questions related to the non-obviousness requirement.
Denial
The Federal Circuit denied a petition for rehearing en banc in a patent case, Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc. The petition presented the following questions related to the non-obviousness requirement:
- “Whether method-of-treatment patents directed to the effect of food on a particular drug are per se obvious because of FDA Guidance acknowledging that food may affect the bioavailability of drugs and should be studied.”
- “Whether the disclosure of the existence of an ongoing clinical trial is evidence of a reasonable expectation of success as to the result of the trial.”
- “Whether a drug-drug interaction patent is obvious when a POSA could not ‘rule out’ the interaction because another compound in the same general category has shown such an interaction.”