Kaye Scholer Scores Major Victory for Pharmaceutical Industry at the Federal Circuit in Wyeth v. Kappos

January 7, 2010

In a decision with sweeping implications for patent owners in every industry, on January 7, 2010, the Court of Appeals for the Federal Circuit affirmed the judgment of the District Court in Wyeth v. Kappos, No. 2009-1120 (Fed. Cir. 2009). In this case we successfully challenged on behalf of our client Wyeth (now Pfizer) at the district court level and on appeal, the U.S. Patent and Trademark Office's interpretation of the statute designed to compensate patent holders for loss of patent term due to delays in processing applications.  The USPTO's interpretation denied patents the full term to which they were entitled under the proper reading of the statute.  Echoing the district court’s ruling, the Federal Circuit found that the statute "is clear, unambiguous, and intolerant of the PTO's suggested interpretation."

Shortly after the Court's ruling, the USPTO and the Department of Justice announced that no further review of the Federal Circuit’s decision would be pursued.  Well over one hundred follow-on cases had been filed in the wake of Wyeth.  As a direct result of the Wyeth victory, additional patent term should be granted in all of those cases.  In addition, on January 28th, the USPTO announced that new calculation procedures would be implemented in light of Wyeth and provided  an interim procedure for patentees to recover patent term.  Since each day of additional patent term can provide considerable economic, commercial and competitive advantages, this is a significant victory for our client and all companies seeking patent protection.

The successful Kaye Scholer team included David O. Bickart.

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