USPTO Says Overlapping Range In Prior Art Insufficient to Invalidate Method of Treatment Patent

April 12, 2018

Pharmaceutical patents frequently claim treatment methods that utilize a range of amounts or concentrations for the active ingredient or excipients included in the formulation. Given the prevalence of such patents, there is surprisingly little practical guidance in the case law regarding the circumstances under which prior art references that disclose treatments with ranges that overlap with those claimed in the patent will or will not anticipate or obviate the claimed invention. The Patent Trial and Appeal Board’s (“PTAB”) recent final decision in Koios Pharmaceuticals LLC v. Medac Gesellschaft Für Klinische Spezialpräparate, Case IPR2016-01370 (Paper 54, February 7, 2018), provides an example of how that issue will be evaluated, which pharmaceutical companies can use to guide their efforts to withstand challenges to the patentability of their method of treatment patents.

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