It Turns Out That PhRMA's Amicus Brief Is A Quite Narrow One, In The Mohawk Tribe Patent License Flap...

Almost two weeks ago now, I mentioned that "the high foreheaded one" had convinced PhRMA to author what I assumed would be a professional-grade-crazy obstruction, by endless patents brief, in the Federal Circuit.

I am pleased to report that this is no such animal.

It was sealed for nearly two weeks, but is as of this very morning, now available as a 21 page PDF. In fact, it treads very well worn and largely prosaic law. It simply argues about what should be accepted -- as evidence of obviousness -- in follow-on patent cases, like the Allergan one (invalidated below). Here's a bit:

. . . .Hence, in the context of an improvement patent, to prove that its product was a commercial success the patentee must establish that the success of the invention is attributable to the improvement. The patentee should be required to show no more than that. As Judge Lourie, joined by Judges Michel and Newman stated, in dissenting from denial of en banc rehearing in the Merck case:

Commercial success is a fact question, and, once it is established, as found here by the trial court, the only other question is whether the success is attributable to the claimed invention (“nexus”), rather than to other factors such as market power, advertising, demand for all products of a given type, a rising economy that ‘lifts all boats,’ etc. It is not negatived by any inability of others to test various formulations because of the existence of another patent. Success is success. . . .

Merck & Co. v. Teva Pharm. USA, Inc., 405 F.3d 1338, 1339 (Fed. Cir. 2005). Judge Lourie criticized the decision in Merck as “especially unsound in the context of an improvement patent, as here, because it holds in effect that commercial success for an improvement is irrelevant when a prior patent dominates the basic invention.” Id.

Once the patentee has demonstrated that the claimed invention is a commercial success and that the requisite nexus exists between that success and the invention, the patentee should not be required to prove more to gain the benefit of that objective evidence of nonobviousness. Here, the district court’s decision improperly nullified Allergan’s evidence regarding commercial success and long-felt need and should be reversed. . . .

I still think Allergan will be put out on its ear here, on appeal -- but I am gratified to see that PhRMA did not advance a crazily pro-Saunders (anti-competitive researchers') position. Onward, with a wide grin. . . seen, before lunch, indeed!

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