Thursday, February 26, 2015

CAFC addresses patent term adjustment in Gilead case; Gilead loses

The outcome of Gilead v. Lee:

Gilead Sciences, Inc. (“Gilead”)
appeals the decision of the United States District Court
for the Eastern District of Virginia granting summary judgment to
the Director of the United States Patent and Trademark Office (“PTO”)
on whether it properly calculated the Patent Term Ad-
justment (“PTA”) period for U.S. Patent No. 8,148,374
(“the ’374 patent”). See Gilead Scis., Inc., v. Rea, 976
F.Supp.2d 833 (2013)(“Gilead I”). Because the district
court properly granted the director’s motion for summary
judgment, this court affirms.

Criminal Division, Fraud Section,
United States Department of Justice, Washin
gton, DC,argued for defendant-appellee.

An issue:

On October 27, 2011, Gilead contested the PTO’s
assessment of the fifty-seven day applicant delay.
Gilead argued its filing of the supplemental IDS did not cause
any actual delay and therefore should not have been
subtracted from its PTA.
The PTO rejected this argument, countering, “under [35 U.S.C. §]
132, the first action mailed by the [PTO] was the restriction requirement
mailed [on] November 18, 2009.” J.A. 130. There-
fore, according to the PTO, Gilead’s filing of a
supplemental IDS after it had file
d a response to the restriction requirement constituted
a failure to engage in a reasonable effort to conclude prosecution as
required by 37 C.F.R. § 1.704(c)(8).

Note that Chevron and Cuozzo are cited:

Under the review provision of the APA applicable here, a court may
set aside the PTO’s actions only
if they are “arbitrary, capricious, an abuse of discretion, or otherwis
e not in accordance with law.” 5 U.S.C. § 706(2)(A).
When reviewing an agency’s statutory interpretation, this court applies
the two-step framework established in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
In re Cuozzo Speed Techs., LLC, No. 2014-1301,

Ejusdem generis is mentioned:

The PTO contends the interpretative rule of
ejusdem generis is inapplicable in this context. Specifically, the
PTO argues “[ejusdem generis] applies only to ‘a general
or collective term following a list of specific items to which
a particular statutory command is applicable.’” Appellee’s
Br. 34 (quoting CSX Transp., Inc. v. Ala. Dep’t. of Reve-
nue,131 S. Ct. 1101, 1113 (2011) ).
As this court has previously held , “[u]nder the rule of
ejusdem generis , which means ‘of the same kind,’ where
an enumeration of specific things is followed by a general
word or phrase, the general word or phrase is held to refer
to things of the same kind as those specified.”
Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed.
Cir. 1994). “We typically use ejusdem generis
to ensure that a general word will not render specific words mean-
CSX Transp., Inc. , 131 S. Ct. at 1113 (2011) (citing
Circuit City Stores, Inc. v. Adams
, 532 U.S. 105, 114-15 (2001)). Here,
ejusdem generis
is inapplicable to this statutory

As to legislative history:

The Supreme Court has held “[e]xtrinsic materials
have a role in statutory interpretation only to the extent
they shed a reliable light on the enacting Legislature’s
understanding of otherwise ambiguous terms.”
ExxonMobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005). Here, Gilead does not contend any provision in
the statute is ambiguous. “[T]he authoritative statement
is the statutory text, not the legislative history or any
other extrinsic material.” Id. Moreover, the weight
attached to extrinsic materials is de minimis
when the legislative history is not from the enacting Congress.
See United States v. Price
, 361 U.S. 304, 31 3 (1960 )
United States v. United Mine Workers o
f Am. , 330 U.S. 258, 282 (1947).



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