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Lapsing of Patent for Failure to Pay Maintenance Fees Held Not to Invalidate Terminal Disclaimer

March 23, 2011

By Bruce M. Wexler and Jason T. Christiansen

On March 17, 2011, the District of New Jersey (Judge Chesler) issued an important decision regarding the doctrine of obviousness-type double patenting (OTDP), holding that when a patent is terminally disclaimed to the expiration date of an earlier-expiring patent and the earlier patent lapses due to failure to pay maintenance fees, the terminal disclaimer may still be effective to obviate OTDP.

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Image: Bruce M Wexler
Bruce M Wexler
Partner, Litigation Department