Smithkline Beecham Corp. v. Apotex Corp.

I join in the judgment of the court, however, I reach the judgment by a different road. I would find that the trial court erred in construing Claim 1 of the ’723 patent. Under the correct construction, SmithKline Beecham (“SKB”) has proven a prima facie case that Apotex’s product will infringe Claim 1. Claim 1, however, is invalid because it encompasses subject matter that is unpatentable under 35 U.S.C. § 101.1 I would affirm the district court’s judgment in favor of Apotex on the basis that Claim 1 encompasses unpatentable subject matter pursuant to § 101 contrary to the finding of the…