(CN) - The Federal Circuit agreed Friday to hold an en banc rehearing of a patent-infringement case brought by the maker of the anticoagulant drug Angiomax.
Though the Medicines Co. alleges that Hospira infringed on its Angiomax patents, a three-judge panel of the Federal Circuit invalidated Medicines' patents this past July.
The Washington-based federal appeals court focused on Medicines' hiring of another company, Ben Venue, to manufacture the drug using the patented method for one year before filing the patent applications.
Under U.S. patent law, an invention cannot be patented if it has been on sale for over one year prior to filing a patent application.
"We find no principled distinction between the commercial sale of products prepared by the patented method and the commercial sale of services that result in the patented product-by-process here," Judge Todd Hughes wrote for the July panel. "The Medicines Company paid Ben Venue for performing services that resulted in the patented product-byprocess, and thus a 'sale' of services occurred.
"To find otherwise would allow The Medicines Company to circumvent the on-sale bar simply because its contracts happened to only cover the processes that produced the patented product-byprocess," the eight-page opinion continued.
The Federal Circuit vacated this ruling Friday in favor of an en banc rehearing.
Briefs are due within 17 days of the order on whether the circumstances of this case constitute a commercial sale despite no transfer of title.
The Federal Circuit has also invited the U.S. Justice Department to file an amicus brief.
There is no date set yet for the hearing itself.
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