Federal Circuit Issues Precedential Opinion Construing the “Original Patent” Requirement for Reissue Patents As Independent From the Recapture Rule
The Federal Circuit on Nov. 17 issued a precedential ruling in Antares Pharma, Inc. v, medac Pharma Inc. and medac GmbH—a “bet-the-company” patent infringement litigation involving subcutaneous concentrated methotrexate injection for the treatment of inflammatory autoimmune diseases, including rheumatoid arthritis and psoriasis. The Federal Circuit, looking to Supreme Court precedents from the mid-1800s and 1900s, in a unanimous decision authored by Judge Dyk, construed the statutory “original patent” requirement (35 U.S.C. 251) (1952) for reissue patents holding: “the [reissue] claims on appeal are invalid for failure to satisfy the original patent requirement of 35 U.S.C. § 251.” Because invalidity was found under the “original patent” requirement, the Court did not need to determine whether the recapture rule applied or was violated.