In a patent infringement case involving patents relating to the production of the protein erythropoietin using recombinant DNA technology, district court's judgment is vacated in part and remanded where: 1) district court's grant of summary judgment and of judgment as a matter of law (JMOL) to plaintiff-Amgen of no invalidity for obviousness-type double patenting of certain claims of one patent is vacated and remanded for an obviousness-type double patenting analysis of these claims; and 2) district court's grant of JMOL to Roche of non-infringement of one claim of another patent is vacated and remanded for a new trial on infringement of that claim. District court's grant of injunction to Amgen is not disturbed and the court's judgment is affirmed in all other respects.
Appeal from: United States District Court for the District of Massachusetts
Decided September 14, 2009
For Appellant: Lloyd R. Day Jr., David M Madrid, Linda A. Sasaki-Baxley, Jonathon D. Loeb, Stuart L. Watt, Wendy A. Whiteford, Erica S. Olson, Cecilia H. Gonzalez, Margaret D. McDonald, Christiam E. Mammen.