United States Patent & Trademark Office has accepted Public Patent Foundation’s (PUBPAT) argument that US Patent Nos. 5,922,695, 5,935,946, 5,977,089 and 6,043,230 for Tenofovir Disoproxil Fumarate (collectively ‘Gilead’s patents’) were anticipated and made obvious by the prior art references submitted by PUBPAT during the request for an ex parte re-examination, and has issued a non-final rejection against the Gilead’s patents. USPTO also accepted PUBPAT arguments contesting the priority date of Gilead’s patents. Although Gilead’s patents are issued non-final rejection, but such non-final rejections are not uncommon in the re-examination procedure and are far from over. Gilead will certainly file a response to non-final rejection, and if the USPTO still decide to issue a Final rejection and invalidates Gilead’s patents, then Gilead can possibly appeal to the Board of Patent Appeals and Interferences by filing a notice of appeal, and then to the Court of Appeals for the Federal Circuit.
In India, Gilead’s mail-box Application Nos. 2076/DEL/1997, 963/DEL/2002 and 896/DEL/2002 for Tenofovir Disoproxil Fumarate are pending with the Delhi Patent Office, and the decision of non-final rejection by the USPTO will certainly have statutory duty on Gilead to share such information with the Patent Office under section 8 of the Patents Act 1970. Considering that the proceedings for US re-examination are far from over, it would still be immature to comment about the impact of non-final rejection on the examination and grant of patent in India.
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