To give the reader a bit of a peak behind the curtain, it can sometimes be taxing to write 5 blog posts in a week. This is especially true on a week, like this one, where the Court issues fewer decisions than average. All of us at IP/DE have our own strategies for dealing with this -- my preferred method is to dig up some stats that I had always wondered about, but never bothered to figure out.
This week, my focus was on invalidity challenges in ANDA cases. In particular, what are the relative odds of invalidating a composition patent, vs. a method of treatment patent, vs. a formulation patent?
The answer, as measured by findings of facts and conclusions of law over the last 2 years, is:
- Compound - 7 valid, 1 invalid (12.5% invalidated)
- Method of treatment - 8 valid, 0 invalid (0% invalidated)
- Formulation - 9 valid, 6 invalid (40% invalidated)
This outcome was a bit surprising to me. My common sense guess would have been that compound patents were the hardest to invalidate, which was pretty close to correct, but I would have guessed that method of treatment patents were significantly more vulnerable to validity challenges. The figures for formulation were about what I would have guessed.
The sample size here is too small to draw sweeping conclusions, but the next time we have a slow week here in Delaware, I'll see if the trend holds further back. Best of luck until then.
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