Mircera® Case Early Test For Recent Pfizer Decision

Posted on | April 18, 2008 | 3 Comments

2008-1300 Amgen v. F Hoffman-LaRoche
D/MA 05-cv-12237

Defendant Hoffman-LaRoche appeals from the post-trial preliminary injunction issued by Judge William Young following a jury verdict that Amgen’s patents were infringed by Hoffman-LaRoche’s Mircera® and were valid.  A preliminary injunction after trial is a little unusual, but the court indicated that it was struggling with the public interest prong of eBay and, pending a report by a Special Master, entered the preliminary injunction to allow an appeal to proceed immediately.

Hoffman-LaRoche’s post trial brief is 377 pages long, so you know there will be no shortage of issues on appeal, particularly related to claim construction and invalidity.

One issue on which the parties have especially covered is the impact of the 07 March 2008 decision in Pfizer v. Teva.  The CAFC held that the "safe harbor" for divisional applications under § 121 (divisionals not subject to obviousness-type double
patenting rejections) did not extend to CIP
applications because (1) the plain
language of the statute says divisionals, and (2) CIPs are different from divisionals because the CIP disclosure is not identical to the
parent’s.  Patent Docs has several very nice posts on the case, including here and here as does Orange Book Blog.

Updated 4/18 to reflect missing case caption and district court information.

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