This past week, the U.S. Court of Appeals for the Federal Circuit ruled in Depomed’s appeal of the cancellation of one of its patents covering a continuous-release drug tablet, an important facet of a number of pharmaceuticals on the market today. The merits of the case itself aren’t that interesting—it turned on whether the combination of polyethylene oxide (PEO) and hydroxypropyl methycelluose (HPMC) to make a “swellable” continuous release tablet was obvious. But the case highlights a number of problems with the way pharmaceutical patents cases are litigated today: costly parallel litigation between federal courts and the PTO, a growing divide into what were once uniform areas of patent law and an upset of the delicate legal architecture supporting brand pharmaceutical manufacturers and generic ones.
