Gilead and Potential Unforeseen Consequences
In part one of this two-part series, Dechert LLP's Carl Morales and Samuel Abrams explore the obviousness-type double patenting (“ODP”) rationale from the Court of Appeals for the Federal Circuit’s Gilead decision, whether Gilead altered settled criteria for establishing ODP and the public policy behind the majority opinion. In the second part of this series, Morales and Abrams examine how courts might implement Gilead in other situations, first by applying the Gilead majority’s revised ODP criteria to two recent Federal Circuit decisions on ODP, and second by considering potential “unforeseen consequences” — forewarned by former Chief Judge Randall Rader’s dissent — that result from application of the Gilead holding to common pharmaceutical patent situations involving patent term adjustment (PTA) and continuation applications.
