Sun Pharmaceutical Industries, Ltd. v. Eli Lilly & Co.

NEWMAN, Circuit Judge, with whom RADER, Chief Judge, and LOURIE and LINN, Circuit Judges, join,

dissenting from denial of the Petition for Rehearing En Banc.

I respectfully dissent from the court’s denial of the request to rehear this case en banc, for inconsistent precedent warrants clarification. Until recently the law of double patenting was clear, but it has become distorted by divergent statements, leading to this flawed ruling.

Until recently it was beyond dispute that the law of double patenting is concerned only with what is patented — that is, what is claimed. To determine whether there…