Mylan, Janssen Face Flurry of Questions on Patent Review Appeals

A three-judge Federal Circuit panel seemed skeptical during oral argument in a case over Mylan Laboratories Ltd.‘s desire to market a generic version of Janssen Pharmaceutical N.V.‘s schizophrenia drug of never being able to vet Patent Trial and Appeal Board decisions on whether to review patents.

Judges Pauline Newman, Kimberly A. Moore, and Kara F. Stoll all suggested that PTAB institution decisions should be appealable—if there’s a true constitutional violation—during argument on Janssen’s motion to dismiss an appeal. But they questioned whether Mylan’s argument rose to that level.

Mylan appealed a board decision applying its NHK-Fintiv rule in ...