Critical dates for prior art in OTDP defense are governed by § 102
Eli Lilly and Company, et al. v. Teva Parenteral Medicines, Inc., C. A. No.08-335-GMS-SLR, November 5, 2010. (Consolidated)
Sleet, C.J. Plaintiff’s motion in limine regarding the critical date[s] for determining prior art for the purpose of defendant’s obvious type double patenting defense is denied. Defendant’s motion in limine on the same topic is granted.
The type of references which constitute prior art is governed by 35 U.S.C. § 102. Plaintiff contends that § 102 does not resolve the question of applicable prior art “as of what date?” The court recognizes the need to specifically distinguish between the obvious and obvious type double patenting (“OTDP”) analyses where necessary, citing Geneva Pharm v. GlaxoSmithKline. However, the Federal Circuit has never suggested intent to apply a different set of prior art rules to OTDP cases. This court will not set aside § 102 simply because logical arguments can be made for doing so. Therefore, the dates provided in § 102 apply.
