Federal Circuit panel splits on inherency case

In a second appeal involving patents relating to the original "Purple Pill^®," a panel of the Federal Circuit split on whether an earlier patent application by a Korean company inherently anticipated one of AstraZeneca's patents covering the popular heartburn medication Prilosec^® (omeprazole).  The panel majority held that a process disclosed in a Korean patent application by Chong Kun Dan Corp. (CKD) would have inherently produced the single disputed limitation, forming in situ a separating layer in the drug, and as a result, anticipated all but one of the claims at issue.  The final claim was held to be obvious as a mere substitution of one known alkaline reacting compound for another.

Judge Newman, in dissent, argued that the science showed that such a separating layer was not formed, and criticized the panel majority for failing to fill in this scientific gap.  She also pointed out the Federal Circuit's inconsistency in its inherency cases, noting that a leading treatise on patent law has recognized this, and taking the panel majority to task for bringing "further uncertainty to this important aspect of patent law."

More details of the case after the jump.

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