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Summary Judgment Ruling Published in Abbott v. Centocor

By Michael C. Smith

Centocor Ortho Biotech, Inc. v. Abbott Laboratories, --- F.Supp.2d ----, 2009 WL 1473431(E.D.Tex. May 27, 2009) (NO. 2:07-CV-139)

Judge: T. John Ward

Holding: Summary Judgment as to priority date GRANTED; summary judgment as to anticipation defense DENIED

One of the things that happens when the a big verdict comes out (although none have been quite the size of the $1.6 billion in Abbott v. Centocor) is that the court's prior rulings in the case which Westlaw hadn't deemed worthy of publication start getting published.  This opinion by Judge granting in part one of defendant Abbott's motions for summary judgment just came out.  In it, Abbott argued that Centocor, through its actions before the United States Patent and Trademark Office (?PTO?) during the prosecution of the patents-in-suit, acquiesced to a priority date of no earlier than February 4, 1994. Centocor's acquiescence purportedly transpired through its abandonment of a parent application and the subsequent filing of a continuation-in-part (?CIP?) application in the face of an examiner's 35 U.S.C. § 112 (first paragraph) rejection. Judge Ward granted Abbott's motion for summary judgment that Centocor was entitled to a priority date of no later than February 4, 1994, but denied Abbott's motion that all of the asserted claims of the patents-in-suit were invalid as anticipated under 35 U.S.C. § 102(b).

Full post as published by Eastern District of Texas Federal Court Practice on August 25, 2009 (boomark / email).