Ways to Avoid Having your Patents Cellected*

Abstract

The Court of Appeals for the Federal Circuit caused frustrations when it decided to affirm the U.S. Patent Office’s findings that claims in four patents were unpatentable because they are not patentably distinct from claims in other patents in the same family. In re Cellect, LLC, 81 F.4th 1216 (Fed. Cir. 2023). In view of the oral argument, the outcome of this case was virtually certain. The issue before the court was, at its core, a straightforward one—was the decision by the Patent Trial and Appeal Board (PTAB) finding the challenged claims unpatentable for obviousness-type double patenting (ODP) to be affirmed? In the appeal, the court noted that for the first time, it was addressing how a statutorily authorized extension, Patent Term Adjustment (PTA), interacts with ODP.

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