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ARTICLE · 24 OCTOBER 2023

In Re: Cellect, LLC No. 2022-1293 (Fed. Cir. Aug. 28, 2023)

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This case addresses how Patent Term Adjustment (PTA) interacts with obviousness-type double patenting (ODP).

United StatesLitigation, Mediation & Arbitration
Zijian Han
Zijian Han
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This case addresses how Patent Term Adjustment (PTA) interacts with obviousness-type double patenting (ODP).

Background

Cellect sued Samsung Electronics, Co. for infringement of four patents. Subsequently, Samsung requested four ex parte reexaminations asserting that the patents were unpatentable based on ODP, which was not raised by the examiner during prosecution. In each ex parte reexamination, the examiner determined that the challenged claims were obvious variants of Cellect's prior-expiring reference.

patent claims. All invalidated claims can be traced back to the single family member patent that did not receive a grant of PTA (Patent Term Adjustment): the '036 patent. Cellect appealed to Patent Trial and Appeal Board (the "Board"). Cellect noted that ODP does not invalidate a validly obtained Patent Term Extension ("PTE") and primarily argued that the Board should similarly hold that ODP cannot negate a statutory grant of PTA.

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