Teva are opposing Wyeth’s Patent Application Number 151450, which is a divisional application of 120382 “Extended Release Formulation Of Venlafaxine Hydrochloride”.
When Teva submitted 60 odd publications, Wyeth accused them of widening the basis of their opposition, claiming that the information should have been submitted in the Statement of Case. Additionally, they claim an interesting idea of Parent Application Estoppel, claiming that by not opposing the parent application, the opposer is estoppeled from opposing the divisional application, and requested the relevant clauses to be struck from the record.
Teva claim that the sixty publications submitted were indicative of the state of the art and were not substantive new grounds for opposition. Furthermore, Teva point out that Dexel have submitted these publications in parallel opposition proceedings. As to the Estoppel argument, Teva suggested that this should be discussed on its merits in the opposition proceedings.
Shoshani Caspi has refrained to comment on the issues raised and is allowing the new publications to be cited. She has, however, required Teva to state what each publication contributes to establishing the State of the Art.
I think Shoshani Caspi’s position is reasonable. I am, however, at a loss as to what Wyeth, represented by Richard Luthi, have to gain by having prior art excluded from an opposition proceedings on procedural grounds. If a patent were to issue due to prior art that negates novelty or inventive step not being considered on a technicality, presumably the patent would be unenforceable as it would not hold up in court.
