The CCPA's Influence On Obviousness-Type Double Patenting Jurisprudence

Obviousness-type double patenting ("ODP") is a judicially-created doctrine¹ intended to prevent the unjustified extension of the right to exclude granted by a patent.² See In re Hubbell, 709 F.3d 1140, 1145 (Fed. Cir. 2013). The Court of Appeals for the Federal Circuit ("CAFC") has addressed the applicability of ODP several times in the last decade, but ODP finds its roots in decisions from the CAFC's predecessor, the Court of Customs and Patent Appeals ("CCPA").

Indeed, the CAFC recently noted that "[t]he prohibition against double patenting is a longstanding doctrine of patent law" that federal courts have applied "for over a century." Gilead Sciences, Inc. v. Natco Pharma Ltd., 753 F.3d 1208, 1212 (Fed. Cir. 2014). As part of our continuing series analyzing CCPA precedent, this article analyzes several key CCPA decisions regarding ODP that contributed to today's ODP jurisprudence. While we will be focusing on a handful of key decisions, the CCPA issued numerous