Here's one news article about a patent fight for the cholesterol-lowering drug Crestor (which is what I'm taking now). Read on:
A federal judge has dismissed a patent infringement suit brought by Teva Pharmaceuticals after finding that its claims of infringing product formulations in the cholesterol drug Crestor were "conceived of and reduced to practice" by AstraZeneca Pharmaceuticals prior to Teva's patent.
The decision by U.S. District Judge William H. Yohn Jr. in Teva v. AstraZeneca was premised on the century-old axiom in patent law that "a product which would literally infringe if later in time anticipates if earlier."
In other words, a company accused of infringing a patent can win the case by showing that it was the first to invent and use it, and that the other company's patent is therefore invalid because of the prior invention.
AstraZeneca's lawyers decided that was the best litigation strategy when Teva filed suit alleging that the drug Crestor included formulations that infringed on a Teva patent.
In its summary judgment motion, AstraZeneca hypothetically conceded infringement, saying it would agree for argument's sake that the accused formulations in Crestor fell within the scope of the Teva patent.
They then argued that Teva's patent should be declared invalid because of AstraZeneca's "prior invention."
The defense team -- led by Jamie B. Bischoff of Ballard Spahr in Philadelphia and Charles E. Lipsey of Finnegan Henderson Farabow Garrett & Dunner in Reston, Va. -- argued that the undisputed evidence showed that AstraZeneca invented the formulations first.
Invoking Section 102(g)(2) as an affirmative defense, AstraZeneca argued that it made the same Crestor product formulations that Teva accuses of infringement before December 1999 -- the earliest date by which Teva claims to have conceived of them -- and that AstraZeneca has not "abandoned, suppressed, or concealed" the formulations.
Teva's lawyers -- Jeffrey J. Toney and Darcy L. Jones of Sutherland Asbill & Brennan in Atlanta -- insisted that AstraZeneca fell short of proving its Section 102 defense.
The plaintiff's team argued that even if AstraZeneca had created the exact infringing commercial formulation in mid-1999, AstraZeneca still could not prove conception or reduction to practice of the invention because there was no evidence that AstraZeneca ever "appreciated" critically important aspects of how the formulations promoted chemical stability.
Now, in a 31-page opinion, Yohn has sided with AstraZeneca on every point.
The hypothetical concession of infringement, Yohn said, satisfied the first prong of the Section 102 defense by showing that Crestor's product formulations meet the limits of the Teva patent.
Yohn also rejected Teva's argument that AstraZeneca cannot show that it appreciated the stabilizing effects of its formulations prior to Teva's patent.
"A prior inventor need not always have appreciated every feature recited in a patent claim in order to have conceived of or reduced to practice the claimed invention," Yohn wrote.
The evidence was undisputed, Yohn found, that AstraZeneca set out to produce a stable pharmaceutical composition containing a statin that could be produced commercially.
"AstraZeneca thus appreciated that its creation possessed the relevant inventive feature -- stability -- even if its understanding of how its creation achieved stability was incorrect," Yohn wrote.
As a result, Yohn found that Teva's discovery that the formulation contributes to stability is "the sort of scientific explanation for a prior art composition's functioning that the Federal Circuit has found to be an inherent property of the prior art in other cases."
The discovery of such an inherent property, Yohn said, "does not make the pharmaceutical compositions claimed by Teva -- which AstraZeneca undisputedly made first -- new."
In his final paragraphs, Yohn declared that AstraZeneca was entitled to summary judgment because it "has presented clear, convincing, and undisputed evidence with which a reasonable jury could not disagree that it conceived and reduced to practice an embodiment meeting the limitations of the asserted claims of Teva's 502 patent before Teva did, and that it did not abandon, suppress, or conceal its invention."
Toney, the lead plaintiffs lawyer, declined to comment on the ruling. Bischoff, in a brief interview, said the decision ends the case and that AstraZeneca is pleased with the result.
More from here: http://www.law.com/jsp/article.jsp?id=1202473973070&Judge_Credits_AstraZenecas_Prior_Invention_Claim_in_Patent_Fight
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