Defendants Clinical Trial Found to Constitute Invalidating Public Use of Asserted Patents

In a case of first impression, Southern District of New York Judge John G. Koeltl found that a defendant innovator drug companys clinical trial resulted in an invalidating public use of the plaintiffs asserted formulation patents.Read the Courts decision here. Plaintiffs Dey, L.P., Dey, Inc., and parent Mylan Inc. filed suit against Sunovion Pharmaceuticals Inc., alleging that Sunovions Brovana® (a nebulized arformoterol solution indicated for treatment of COPD) infringed seven related Dey formulation patents in two patent families. Sunovion moved for summary judgment that all five of the second family patents were invalid because Sunovion had used formulations within the scope of the asserted claims in a clinical trial more than one year before the effective filing date of those patents. The parties did not dispute that the clinical tri