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Federal Circuit Rules That Novo Nordisk Misled USPTO
In Novo Nordisk Pharms, Inc. v. Bio-Technology General Corp., No. 04-1581, 2005 WL 2443857 (Fed. Cir. Oct. 5, 2005), the U.S. Court of Appeals for the Federal Circuit affirmed the lower court's decision that U.S. Patent 5,633,352 (“the '352 patent”) is unenforceable due to inequitable conduct. The Federal Circuit also affirmed the district court's decision that claim 1 of the '352 patent was invalid due to anticipation and vacated the judgment of invalidity with respect to claim 2.
The '352 patent covers a process for producing human growth hormone (“hGH”) protein in E. Coli bacteria using the enzyme DAP I through recombinant DNA techniques. The '352 patent issued from U.S. Application 402,286 (“the '286 application”), filed on March 10, 1995, which claimed priority to a 1983 PCT application, which in turn claimed priority to a Danish application filed on Dec. 10, 1982. The 1983 PCT application discloses the use of an enzyme, known as LAP, to produce hGH from a pre-hGH fusion protein. On Nov. 12, 1982, Novo Nordisk (“Novo”) filed U.S. Application 07/959,856 (“the '856 application”), which was the first in a series of applications that claimed priority to an application filed on Dec. 10, 1982.
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