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- Associate Attorney – Law Firm – Detroit, Mich.
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what if same fact pattern as #1, but both patents have issued years ago. Is it necessary to now go back and file a TD in the first issued patent (with the longer term)? What if no such TD is filed?
In the case that I cited, the result of not filing a TD was that the earlier-issued patent was found invalid for double patenting.
That is a super odd situation but yes D’s analysis appears to be correct.
OK to ask an off topic question?
Situation:
After long prosecution, an inventor’s 1st patent issued in 2011, and was given a term extension of nearly 4 years. Great.
A 2nd patent is now allowable, as a non-statutory double patent, if a terminal disclaimer is filed.
Question: Might allowance of the 2nd patent somehow reduce the term extension of the 1st patent?
Yes. Since the second issued patent has the shorter term, then the owner would need to file a terminal disclaimer in the earlier-issued application. This was explained by the court in the Gilead Sci case from earlier in 2014. Link: link to patentlyo.com
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