Merck & Co. v. Hi-Tech Pharmacal Co.

LINN, Circuit Judge.

This case presents the question of whether a patent term extension under the Hatch-Waxman Act, 35 U.S.C. § 156, may be applied to a patent subject to a terminal disclaimer under 35 U.S.C. § 253, filed to overcome an obviousness-type double-patenting rejection. Because the language of § 156 is unambiguous and fulfills a purpose unrelated to and not in conflict with that of § 253, we hold that a Hatch-Wax-man term extension may be so applied.

I. BACKGROUND

Merck & Co, Inc. (“Merck”) is the inventor of TRUSOPT®, a drug used to treat glaucoma. On June 26, 1987, Merck filed a…