Portions of patent deemed incorporated by reference for anticipation defense
Sunovion Pharmaceuticals Inc. v. Dey Pharma., L.P., et al., Civil Action No.06-113-LPS, January 18, 2012.
Stark. J. Court rules that the host document incorporates by reference the practical utility of compounds described in a second patent; thus material will be considered together as a single reference for purposes of anticipation.
This is an ANDA case relating to the levalbuterol. Defendants claim invalidity due to anticipation based on one British patent which incorporates by reference material in a second British patent. Plaintiff’s contention that the second patent is directed to an entirely different invention which included the reference as background only, and that the host patent failed to identify with detailed particularity what specific material it incorporates failed to persuade the court, although it was a close call.
