GILEAD SCIENCES, INC., HOFFMANN-LA ROCHE, INC., F. HOFFMANN-LA ROCHE, LTD., AND GENENTECH, INC., Plaintiffs-Appellees, v. NATCO PHARMA LIMITED AND NATCO PHARMA, INC., Defendants-Appellants., 753 F.3d 1208

Summary

ISSUE: Can a patent that issues after but expires before another patent qualify as a double patenting reference for the earlier issued patent? HOLDINGS: [1]-Because the obviousness-type double patenting doctrine prohibits an inventor from extending his right to exclude through claims in a later-expiring patent that are not patentably distinct from the claims of the inventor's earlier-expiring patent, in this case the earlier expiring patent qualified as an obviousness-type double patenting reference for the later expiring patent even though the earlier expiring patent was issued after the later expiring patent.