Friday, December 12, 2008

In showing unexpected results to overcome obviousness rejection, applicant's failure to test closest prior art was not inequitable conduct

Plaintiff was entitled to summary judgment on defendant's inequitable conduct defense based defendant's allegation that the test performed by applicants to show unexpected results to overcome an obviousness rejection did not test the "closest prior art." "Defendants have not alleged facts to suggest that Applicants intentionally chose to test a compound that was not the closest prior art. . . . Moreover, the examiner who was informed of all of the identified compounds in the [prior art] did not determine that the compound selected [for testing] was not the closest prior art compound."

Pfizer Inc. v. IVAX Pharm., Inc., 2-07-cv-00174 (NJD December 10, 2008, Opinion)

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