When a 3rd-Party Use is a 'Public' Use

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The Federal Circuit’s May 20 decision in Dey LP v. Sunovion Pharmaceuticals Inc., Case No. 2012-1428, provides a welcome clarification of the court’s “public use” law. The court explained that an alleged “public use” is invalidating only if it is sufficiently “accessible to the public” so that the public could reasonably believe that the invention is freely available. The court also addressed head on the important question of whether the same standards should apply to third-party public uses as to uses by the patent owner, and confirmed that the same standards should apply. After explicating the proper legal standards, the court held that the lower court misapplied the law in several important respects.

In an interesting twist, however, the majority panel declined to grant summary judgment to the patent holder, however, preferring to leave that decision to the lower court. This disagreement on the proper disposition of the appeal drew a dissent from the third member of the panel, who did not otherwise object to any aspect of the majority’s discussion of the law.

Originally published in Law360 on June 11, 2013.

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