Four Judges Dissent from CAFC Denial of Rehearing in Generic Osteoarthritis Drug Case

The U.S. Court of Appeals for the Federal Circuit (CAFC) today denied HZNP Medicines LLC’s (Horizon’s) request for rehearing in HZNP Medicines LLC v. Actavis Laboratories UT, Inc., with Judges Newman, O’Malley, Stoll and Lourie dissenting. Judge Lourie, writing for the dissent, said that the Court “has erroneously misconstrued the ‘consisting essentially of’ language in evaluating the definiteness requirement of 35 U.S.C. § 112” and that rehearing en banc should have been granted. In October, the CAFC affirmed the U.S. District Court for the District of New Jersey’s findings of invalidity and noninfringement of certain claims of some of the asserted Horizon patents, as well as the district court’s finding of nonobviousness of one claim of another Horizon patent. Judge Newman dissented in that decision, saying that “The majority’s new ruling sows conflict and confusion” and that it could “cast countless patents into uncertainty.”

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