Senju Pharmaceutical Co. v. Apotex Inc.

The dispositive issue in this case is whether Senju’s reexamined claims granted new patent rights that Senju could not have asserted in its first lawsuit against Apotex. The majority says that, “a so-called ‘reexamined patent’ is the original patent.” Maj. Op. at 1352 (emphasis added). Under the majority’s reasoning, after a patentee asserts a patent’s original claims in one lawsuit, a subsequent lawsuit asserting the patent’s reexamined claims against the same defendant is an improper attempt to revisit a patent that has already been adjudicated. But, it is the rights created by a patent…