The FTC recently challenged scores of pharmaceutical patents as improperly listed in the Orange Book. This was an important because, among the many ways that BigPharma has been accused of abusing the patent system to block lower-cost generic formulations, attacking Orange Book listings has had limited success in the past. In 2020, the First Circuit endorsed antitrust allegations against Sanofi for improperly listed patents. More recently, the Federal Circuit issued a precedential decision limiting the scope of patents that can be permissibly listed in the Orange Book. This is also an important decision because it is one of the few precedential decisions from the Federal Circuit to address this issue. What are the policy implications of the Federal Circuit’s recent ruling regarding Orange Book patent listings?
Read MoreOn June 4, the Federal Circuit issued a precedential decision holding that § 285 under the Patent Statute is inapplicable for awarding attorneys’ fees to the prevailing party in a proceeding for inter partes review. The case is Amneal Pharmaceuticals, LLC v. Almirall, LLC, Case No. 2020-1106 (Fed. Cir. Jun. 4, 2020). While the Court’s decision dispenses rather cleanly with the possibility of collecting fees for prevailing in an IPR, the Court nonetheless left open the door to collecting fees if the IPR is intimately tied to a pending parallel district court case. How much does that matter?
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