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Gilead’s Cert Petition Denied

In Gilead Sciences v. Natco Pharma, the Federal Circuit held that for post-GATT patents, i.e., patents filed after June 8, 1995 and subject to a 20 year term from the filing of the patent applications under the General Agreement on Tariffs and Trade (GATT), an earlier-filed and therefore earlier-expiring patent could be a double-patenting reference against a later-filed, later-expiring patent even though the earlier-expiring patent issued later.  The Federal Circuit’s decision invalidated Gilead’s earlier-issued, later-expiring post-GATT patent to treating the flu (Tamiflu) for obviousness type double patenting over a later-issued, earlier-expiring post-GATT patent also owned by Gilead.  Gilead filed a petition for writ of certiorari to have the decision reversed as contrary to precedent stating that a later-issued patent cannot be a double-patenting reference against an earlier-issued patent.  The Pharmaceutical Research and Manufacturers of America and the Biotechnology Industry Organization filed an amicus brief in support of Gilead. Today, the Supreme Court denied Gilead’s petition.

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