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30 January 2020AmericasRory O'Neill

Fed Circuit won’t revisit Sanofi’s PTAB appeal despite Arthrex

The US Court of Appeals for the Federal Circuit has thrown out Sanofi’s request to apply the recent Arthrex  ruling on the constitutionality of the Patent Trial and Appeal Board (PTAB) to more cases.

Sanofi had applied for the entire panel of Federal Circuit judges to rehear its patent infringement dispute with Mylan Pharmaceuticals en banc.

The French pharmaceutical company is looking to have the invalidation of two of its insulin patents overturned.

But in an order issued Tuesday, January 28 the Federal Circuit panel declined to revisit the case.

According to Sanofi, the case should have been reheard in light of the Federal Circuit’s Arthrex ruling last November, which held that PTAB judges were appointed unconstitutionally.

Sanofi said that the petition for en banc rehearing of the case was an important opportunity for the court to “decide whether Arthrex applies to parties in all open cases, or merely the few that raised an Appointments Clause challenge in an opening brief filed before Arthrex issued”.

Arthrex has been met with a decidedly mixed reaction, with the US government leading calls for the ruling to be overturned.

Sanofi said that the Arthrex ruling constituted a “significant change of law” that warranted a full en banc rehearing of its case.

The Sanofi dispute arose after Mylan petitioned for the PTAB to institute inter partes review (IPR) of two Sanofi patents relating to a long-acting insulin formulation (insulin glargine).

The IPR resulted in the PTAB invalidating the two patents on grounds of obviousness.

Sanofi appealed to the Federal Circuit which, in a majority decision issued in November 2019 post-Arthrex, affirmed the PTAB’s invalidation of the two patents.

Judge Pauline Newman dissented from the majority decision, arguing that the case should be remanded and sent back to be heard by a new panel of PTAB judges appointed in line with Arthrex.

According to Sanofi, the majority panel failed to apply an “intervening change of law” as required by US Supreme Court precedent.

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13 February 2020   Pharmaceutical company Sanofi has been granted a stay by the US Supreme Court in its ongoing patent litigation battle with Netherlands-based Mylan.
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10 September 2020   The US Court of Appeals for the Federal Circuit granted the owner of an artificial heart valve patent a remand under Arthrex, but shot down the company’s attempt to escape an inter partes review by citing a conflict.
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30 March 2021   In a win for medical device maker Arthrex, a federal judge in Delaware has ruled that its wrist-plating system does not infringe a patent owned by competitor TriMed Technologies.

More on this story

Big Pharma
13 February 2020   Pharmaceutical company Sanofi has been granted a stay by the US Supreme Court in its ongoing patent litigation battle with Netherlands-based Mylan.
Americas
10 September 2020   The US Court of Appeals for the Federal Circuit granted the owner of an artificial heart valve patent a remand under Arthrex, but shot down the company’s attempt to escape an inter partes review by citing a conflict.
Medtech
30 March 2021   In a win for medical device maker Arthrex, a federal judge in Delaware has ruled that its wrist-plating system does not infringe a patent owned by competitor TriMed Technologies.

More on this story

Big Pharma
13 February 2020   Pharmaceutical company Sanofi has been granted a stay by the US Supreme Court in its ongoing patent litigation battle with Netherlands-based Mylan.
Americas
10 September 2020   The US Court of Appeals for the Federal Circuit granted the owner of an artificial heart valve patent a remand under Arthrex, but shot down the company’s attempt to escape an inter partes review by citing a conflict.
Medtech
30 March 2021   In a win for medical device maker Arthrex, a federal judge in Delaware has ruled that its wrist-plating system does not infringe a patent owned by competitor TriMed Technologies.