PHOTOCURE ASA v. Dudas

MEMORANDUM OPINION

LIAM O’GRADY, District Judge.

In this action, Plaintiff PhotoCure seeks to extend the term of its drug patent, which was effectively shortened by the lengthy Food and Drug Administration (“FDA”) approval process. 35 U.S.C. § 156 (2006) permits patent term extensions in such circumstances, provided that the applicant meets specific statutory elements. One such element requires that the drug be the first permitted commercial marketing or use of “the product.” 35 U.S.C. § 156(a)(5)(A) (2006). On May 13, 2008, the Defendants, employees of the United States Patent and Trademark…