Today the Supreme Court denied cert in GSK v. Teva in which the Solicitor General filed a brief in support of granting cert. The Solicitor argued that the decision in GSK's favor threatened the availability of lower cost generic drugs.
The problem for Teva was that the case was fact intensive, including Teva amending the label to remove the skinny label carve-out and some its news releases which were viewed by Judge Newman, who wrote the opinion as encouraging infringement of the patent claims. Judge Newman is noted for favoring jury decisions which in the case had found induced infringement which overturned on JMOL. Federal Circuit viewed this as encouraging infringement. The Supreme Court had requested the Solicitor General's view on the issue, which had led some to believe that a grant of cert could be expected. It seems likely that the Supreme Court viewed this as a fact-based decision as to whether or not Teva had actively encouraged doctors to infringe GSK's patent for using the drug Coreg to treat the patented indication of treating heart failure. Judge Prost dissented, relying on a lack of causation to support the inducement claim.
The case will now return to the lower court for a trial on Teva's estoppel defense based on GSK's representations to the FDA as to what the patent covered.
The patent eligibility cases were Interactive Wearables, LLC v. Polar Electro Oy, 21-1281 and Tropp v. Travel Sentry, 22-22. In both cases, the Court had requested the views of the Solicitor General. The Solicitor was in favor of granting cert to provide some clarity to patent eligibility law where Federal Circuit has created confusion. The Court refused to grant petition and, as is typical, provided no reasons for the denial other than to note that Justice Kavanaugh was in favor of granting cert. The problem is not with the prior Court decisions but the Federal Circuit's practice of refusing to follow its own prior decisions to create a unified body of law.
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