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Obviousness of Chemical Compounds: The "Lead Compound" Concept – Addendum






By Vincent Capuano of Sterne Kessler Goldstein & Fox

As the July issue of IP Today was going to press, the Court of Appeals for the Federal Circuit handed down its decision and opinion in Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd., No. 06-1325 (June 28, 2007).  My paper in the July issue discussed the district court’s decision and opinion in this case as it relates to whether the law of obviousness of chemical compounds requires that the prior art motivate a person of ordinary skill to select a "lead compound" for modification before that compound can be used to render a later- claimed compound prima facie obvious, and whether such a requirement was consistent with the Supreme Court’s opinion in KSR v. Teleflex.  As discussed in the paper, there is no per se "lead compound" requirement stemming from earlier Federal Circuit precedent and such a requirement would run afoul of KSR.  This addendum addresses the Federal Circuit’s treatment of that concept in its recent decision in Takeda v. Alphapharm.

The Federal Circuit’s holding in Takeda v. Alphapharm is neither ground-breaking nor surprising.  In fact, it is rather reasonable and straightforward.  The Court held that

in cases involving new chemical compounds, it remains necessary to identify some reason that would have led a chemist to modify a known compound in a particular manner to establi...

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