Japanese Foundation For Cancer Research v. Rea et al, No. 1:2013cv00412 - Document 31 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 7/26/13. (gwalk, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JAPANESE FOUNDATION FOR CANCER RESEARCH Plaintiff, Civil Action No. l:13-cv-412 v. (AJT/TRJ) TERESA STANEK REA, Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the United States Patent and Trademark Office, UNITED STATES PATENT AND TRADEMARK OFFICE, Defendants. MEMORANDUM OPINION On October 11,2011, a terminal disclaimer of U.S. Patent No. 6,194,187 was filed with the United States Patent and Trademark Office ("PTO") on behalf of the patent owner, plaintiff Japanese Foundation for Cancer Research (the "Foundation").1 After the disclaimer was filed, but before it was published on the PTO's website or in the PTO's Official Gazette, the 1Generally, the term of a patent is twenty years from the filing date of the patent application. 35 U.S.C. ยง 154(a)(2). A "terminal disclaimer" refers to a patentee's formally disclaimer, and dedication to the public, of part of a patent term. Such disclaimers are generally used by patent applicants to avoid what is referred to as an "obviousness-type double patenting" rejection by the PTO based on "an 'obvious' modification of the same invention [already patented]." In re Longi, 759 F.2d 887, 892-93 (Fed. Cir. 1985). A rejection on this basis is intended to protect the public from an "unjustified timewise extension" of a patent. Boehringer Ingelheim Intern. GmbHv. Barr Lab., Inc., 592 F.3d 1340, 1347-48. (Fed. Cir. 2010). To avoid such a rejection of a new patent application, a terminal disclaimer will be filed as part of the new patent application, with the result that the new patent will issue with a term that expires at the same time as the earlier, already issued patent. Id.
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