Summary Judgment Brief on Invalidity and Obviousness

• Author: Kenneth L. Dorsney
• Pages: 837-840

Smmary Judgment Brief on Invalidity and Obviousness

IN THE UNITED STATES DISTRICT COURT

[]

[]

[]

[]

The patents-in-suit are directed to purportedly novel formulations for [active

] where [explain]. The patents were originally obtained by _____.

During prosecution before the United States Patent and Trademark Office

(“USPTO”), the applicants (i.e., inventors of the patents-in-suit) repeatedly argued

[insert].

Had _____ told the USPTO what it previously told the FDA the patents-in-suit

never would have issued. This Court should, on summary judgment, correct that error

and find as a matter of law that the patents-in-suit are obvious over [insert]’s.

I.

Hatch-Waxman patent litigation affords only equitable relief. See 35 U.S.C.

§ 355. If this case is not resolved by summary judgment, it will therefore proceed to a

bench trial. The patents-in-suit are United States Patent Nos. 1 (“the ’001 patent”) and 2

(“the ’002 patent”). The ’002 patent is a continuation of the ’001 patent. The patents

thus share a common disclosure that was filed on [Date]. [Cite] Plaintiff has

acknowledged that the claims in the two patents are not materially different.

The reference-listed [a ] drug that Plaintiff contends is covered by

the patents-in-suit is the current BrandX. _____ obtained FDA approval for the BrandX

drug on [Date].

[describe]

837

A-32

dor54588_24_app_663–914.indd 837 5/5/16 5:05 PM