United States Court of Appeals
for the Federal Circuit
__________________________
SUN PHARMACEUTICAL INDUSTRIES, LTD.,
Plaintiff-Appellee,
v.
ELI LILLY AND COMPANY,
Defendant-Appellant.
__________________________
2010-1105
__________________________
Appeal from the United States District Court for the
Eastern District of Michigan in case no. 07-CV-15087,
Judge George Caram Steeh.
__________________________
Decided: July 28, 2010
__________________________
JAMES F. HURST, Winston & Strawn LLP, of Chicago,
Illinois, argued for plaintiff-appellee. With him on the
brief were GAIL J. STANDISH and PETER E. PERKOWSKI, of
Los Angeles, California.
CHARLES E. LIPSEY, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Reston, Virginia, argued for
defendant-appellant. With him on the brief were ROBERT
D. BAJEFSKY, HOWARD W. LEVINE, ROBERT F. SHAFFER and
JESSICA R. UNDERWOOD, of Washington, DC. Of counsel
SUN PHARMACEUTICAL v. ELI LILLY 2
on the brief was JAMES P. LEEDS, Eli Lilly and Company,
of Indianapolis, Indiana.
__________________________
Before BRYSON, GAJARSA, and PROST, Circuit Judges.
PROST, Circuit Judge.
Appellant Eli Lilly and Company (“Lilly”) appeals
from a final judgment of the U.S. District Court for the
Eastern District of Michigan, finding claims 2, 6, and 7 of
U.S. Patent No. 5,464,826 (“’826 patent”) invalid for
obviousness-type double patenting over U.S. Patent No.
4,808,614 (“’614 patent”). Because the district court
correctly found these claims of the ’826 patent invalid, we
affirm.
BACKGROUND
Lilly markets the drug Gemzar® for the treatment of
various forms of cancer. The active ingredient in
Gemzar® is gemcitabine. Both patents at issue in this
suit, the ’614 patent and the ’826 patent, cover gemcit-
abine and are therefore listed in the Food and Drug
Administration’s (“FDA’s”) Approved Drug Products with
Therapeutic Equivalence Evaluations (the “Orange Book”)
with respect to Gemzar®. The ’614 patent claims gemcit-
abine, as well as a method of using gemcitabine for treat-
ing viral infections. The ’826 patent, however, claims a
method of using gemcitabine for treating cancer.
The ’614 patent, entitled “Difluoro Antivirals and In-
termediate Therefor,” issued on February 28, 1989 and
expired on May 15, 2010. The ’614 patent resulted from a
divisional application, filed December 4, 1984, as a con-
tinuation-in-part of U.S. Patent Application Serial No.
3 SUN PHARMACEUTICAL v. ELI LILLY
473,883 (“original ’883 application”), filed on March 10,
1983. 1 ’614 patent at [60], col.1 ll.7-11.
The specification of the original ’883 application de-
scribed only gemcitabine’s utility for antiviral purposes.
The continuation-in-part that resulted in the ’614 patent
added a description of gemcitabine’s anticancer utility to
the specification. Specifically, the specification of the ’614
patent explains:
In addition to the antiviral utility of the present
compounds, certain of the compounds of the pre-
sent invention have also demonstrated excellent
oncolytic activity in standard cancer screens. A
particularly preferred compound with this utility
is [gemcitabine]. This compound demonstrated
activity in tumor systems L1210V lymphocytic
leukemia, 6C3HED lymphosarcoma, CA-755 ade-
nocarcinoma, P1534J lymphatic leukemia and
X5563 plasma cell myeloma.
Id. col.17 ll.53-63 (emphases added). Claims 1, 2, and 8 of
the ’614 patent are directed to a class of nucleosides,
which includes gemcitabine, whereas dependent claim 12
is directed solely to gemcitabine. Id. col.19. l.56-col.22
l.15. Claims 13 and 14 of the ’614 patent recite a method
of using the claimed nucleosides, including gemcitabine,
for treating Herpes viral infections. Id. col.22 ll.16-24.
The ’614 patent does not claim a method of using any of
the claimed nucleosides for treating cancer.
1 Lilly and Sun Pharmaceutical Industries, Ltd.
(“Sun”) did not dispute before the district court or on
appeal that the ’614 patent is entitled to the benefit of the
filing date of the original ’883 application. See Lilly’s
Principal Br. 8, 21; Lilly’s Reply Br. 12, 19.
SUN PHARMACEUTICAL v. ELI LILLY 4
On December 4, 1984, the same day that Lilly filed
the continuation-in-part that resulted in the ’614 patent,
Lilly filed another patent application that ultimately
issued as the ’826 patent. The ’826 patent, titled “Method
of Treating Tumors in Mammals with
2’,2’Difluoronucleosides,” issued on November 7, 1995.
The ’826 patent expires on November 7, 2012, which is
two-and-a-half years after the expiration of the ’614
patent. Lilly did not file a terminal disclaimer with
respect to the ’826 patent.
Each claim of the ’826 patent is directed to a method
of treating cancer with an effective amount of a class of
nucleosides, which includes gemcitabine. Specifically,
claim 1 of the ’826 patent recites “[a] method of treating
susceptible neoplasms[, i.e., cancer,] in mammals com-
prising administering to a mammal in need of such
treatment a therapeutically effective amount” of the class
of nucleosides. ’826 patent col.23 l.41-col.24 l.46. Claim 2
of the ’826 patent, which depends from claim 1, is specifi-
cally directed to a method of using gemcitabine “or a
pharmaceutically acceptable salt thereof” for this purpose.
Id. col.24 ll.46-48. Dependent claims 6 and 7 are directed
to treating specific “susceptible neoplasms,” including
“leukemias, sarcomas, carcinomas, and myelomas,” with
the entire class of nucleosides and gemcitabine respec-
tively. Id. col.24 ll.59-64.
In 2006, Sun, a generic drug manufacturer, filed an
Abbreviated New Drug Application (“ANDA”) with the
FDA in which Sun sought approval to market a generic
version of Lilly’s Gemzar® and certified that both the ’614
patent and the ’826 patent were invalid or not infringed.
On November 29, 2007, Sun filed this declaratory judg-
ment action against Lilly, seeking declaratory relief that
the ’826 patent is invalid and not infringed. Lilly filed
5 SUN PHARMACEUTICAL v. ELI LILLY
counterclaims for infringement of the ’826 patent and the
’614 patent.
On August 17, 2009, the district court granted Sun’s
motion for partial summary judgment that the asserted
claims, namely claims 2, 6, and 7, of the later ’826 patent
are invalid for obviousness-type double patenting over the
earlier ’614 patent. Sun Pharm. Indus., Ltd. v. Eli Lilly
& Co., 647 F. Supp. 2d 820 (E.D. Mich. 2009) (“Summary
Judgment Order”). Relying primarily on our decisions in
Geneva Pharmaceuticals, Inc. v. GlaxoSmithKline PLC,
349 F.3d 1373 (Fed. Cir. 2003), and Pfizer, Inc. v. Teva
Pharmaceuticals USA, Inc., 518 F.3d 1353 (Fed. Cir.
2008), the district court concluded that, given the ’614
patent’s disclosure of gemcitabine’s anticancer use, claim
12 of the earlier ’614 patent, which claims gemcitabine,
and claims 2, 6, and 7 of the later ’826 patent, which
claim a method of using gemcitabine for cancer treatment,
are not patentably distinct as a matter of law. Summary
Judgment Order, 647 F. Supp. 2d at 824-25.
Upon motion by Lilly, the district court, pursuant to
Federal Rule of Civil Procedure 54(b), entered final judg-
ment that the ’826 patent is invalid. Lilly timely ap-
pealed to this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
DISCUSSION
“Double patenting is a question of law, which we re-
view without deference.” Pfizer, 518 F.3d at 1363. Simi-
larly, we review “a district court’s grant of summary
judgment without deference.” Perricone v. Medicis
Pharm. Corp., 432 F.3d 1368, 1372 (Fed. Cir. 2005). “A
court considering summary judgment must draw all
SUN PHARMACEUTICAL v. ELI LILLY 6
reasonable inferences in favor of the nonmovant.” Ge-
neva, 349 F.3d at 1379.
“The doctrine of double patenting is intended to pre-
vent a patentee from obtaining a timewise extension of [a]
patent for the same invention or an obvious modification
thereof.” In re Basell Poliolefine Italia S.P.A., 547 F.3d
1371, 1375 (Fed. Cir. 2008). The proscription against
double patenting takes two forms: (1) statutory double
patenting, which stems from 35 U.S.C. § 101 and prohib-
its a later patent from covering the same invention, i.e.,
identical subject matter, as an earlier patent, and (2)
obviousness-type double patenting, which is a judicially
created doctrine that prevents a later patent from cover-
ing a slight variation of an earlier patented invention.
Perricone, 432 F.3d at 1372-73; see Geneva, 349 F.3d at
1377-78.
The second type of double patenting, obviousness-type
double patenting, prohibits “claims in a later patent that
are not patentably distinct from claims in a commonly
owned earlier patent.” In re Basell, 547 F.3d at 1375. An
obviousness-type double patenting analysis, which “com-
pares claims in an earlier patent to claims in a later
patent or application,” Geneva, 349 F.3d at 1378 n.1,
consists of two steps, Pfizer, 518 F.3d at 1363. First, the
court “construes the claim[s] in the earlier patent and the
claim[s] in the later patent and determines the differ-
ences.” Id. Second, the court “determines whether those
differences render the claims patentably distinct.” Id. “A
later claim that is not patentably distinct from,” i.e., “is
obvious over[] or anticipated by,” an earlier claim is
invalid for obviousness-type double patenting. Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 968 (Fed. Cir. 2001).
7 SUN PHARMACEUTICAL v. ELI LILLY
Our prior obviousness-type double patenting decisions
in Geneva and Pfizer, which addressed factual situations
closely resembling that presently before the court, control
this case. In both cases, we found claims of a later patent
invalid for obviousness-type double patenting where an
earlier patent claimed a compound, disclosing its utility in
the specification, and a later patent claimed a method of
using the compound for a use described in the specifica-
tion of the earlier patent. See Pfizer, 518 F.3d at 1363;
Geneva, 349 F.3d at 1385-86. We held that a “claim to a
method of using a composition is not patentably distinct
from an earlier claim to the identical composition in a
patent disclosing the identical use.” Pfizer, 518 F.3d at
1363; Geneva, 349 F.3d at 1385-86.
In Geneva, the earlier patent claimed a compound, po-
tassium clavulanate, and the specification disclosed its
effectiveness in inhibiting β-lactamase in humans. 349
F.3d at 1384-86. The later patent then claimed a method
of using the compound to effect β-lactamase inhibition in
humans or animals. Id. In our obviousness-type double
patenting analysis, we determined that to ascertain the
scope of the earlier patent’s claim to the compound itself,
we had to examine the specification of the earlier patent,
including the compound’s disclosed utility. Id. at 1385.
Upon reviewing this disclosure, we concluded that the
claims of the two patents were not “patentably distinct”
and thus the later patent was invalid for obviousness-type
double patenting, because the later patent “claim[ed]
nothing more than [the earlier patent’s] disclosed utility
as a method of using the . . . compound.” Id. at 1385-86.
Similarly, in Pfizer, the earlier patent claimed several
compounds and the specification disclosed their use in
treating inflammation and inflammation-associated
disorders. 518 F.3d at 1363 & n.9; see U.S. Patent No.
SUN PHARMACEUTICAL v. ELI LILLY 8
5,563,165 (“’165 patent”), at [57], col.1 ll.11-14, col.3 ll.3-
27. The later patent then claimed a method of using
these compounds for treating inflammation, inflamma-
tion-associated disorders, and specific inflammation-
associated disorders, including arthritis, pain, and fever.
Pfizer, 518 F.3d at 1363 & n.9; see U.S. Patent No.
5,760,068 (“’068 patent”) col.97 l.49-col.108 l.29. After
rejecting the patentee’s objection to our consideration of
the specification of the earlier patent, we determined that
the later patent “merely claims a particular use described
in the [earlier] patent of the claimed compositions of the
[earlier] patent.” Pfizer, 518 F.3d at 1363 & n.8. As such,
we concluded that the asserted claims of the later patent
were not “patentably distinct” from the claims of the
earlier patent, and thus the later patent was invalid for
obviousness-type double patenting. Id. at 1368.
Lilly attempts to distinguish Geneva and Pfizer from
this case, arguing that the holding of these cases should
be limited to their facts. Lilly contends that in both cases,
the specification of the earlier patent disclosed a single
use for the claimed compound, which was an essential
part of the patented invention and thus necessary to
patentability. Lilly argues that the double-patenting
analysis of Geneva and Pfizer does not apply to the later
’826 patent claims reciting a method of using gemcitabine
for cancer treatment because, though the specification of
the earlier ’614 patent disclosed gemcitabine’s use in
treating both viral infections and cancer, the antiviral use
provided the essential utility necessary to the patentabil-
ity of the ’614 patent’s claim to gemcitabine. Lilly objects
to what it characterizes as the district court’s extension of
the obviousness-type double patenting analysis of Geneva
and Pfizer to any utility disclosed in the specification of
an earlier patent. We reject Lilly’s argument.
9 SUN PHARMACEUTICAL v. ELI LILLY
It is true that, as the Geneva court recognized, the
earlier patent in Geneva disclosed a “single use” for the
claimed compound, namely inhibition of β-lactamase. 349
F.3d at 1384-86. However, the reasoning and holding of
Geneva are not so limited. Id. Our later decision in Pfizer
demonstrates this point. We disagree with Lilly’s attempt
to characterize Pfizer as involving a single disclosed
utility, as well as with its argument that the decision’s
rationale turned on this alleged single utility.
First, Lilly’s classification of Pfizer is factually erro-
neous because the earlier patent’s specification unambi-
guously disclosed more than one utility for the claimed
compound. Specifically, the specification of the earlier
patent described the compound’s use in treating both
inflammation and inflammation-associated disorders. 2
The specification also enumerated nearly fifty different
inflammation-associated disorders, including pain, head-
aches, fever, arthritis, asthma, bronchitis, skin-related
conditions, and gastrointestinal conditions, for which the
claimed compounds “would be useful.” ’165 patent col.3
ll.3-27. The specification’s discussion of the compounds’
use for both inflammation and inflammation-associated
disorders, as well as the diverse range of ailments ex-
pressly included in the “inflammation-associated disor-
ders” category, shows that the specification disclosed
2 See, e.g., ’165 patent, at [57] (“A class of . . . com-
pounds is described for use in treating inflammation and
inflammation-related disorders.”) (emphasis added); id.
col.1 ll.11-14 (“This invention . . . specifically relates to
compounds . . . for treating inflammation and inflamma-
tion-associated disorders, such as arthritis.”) (emphasis
added); id. col.3 ll.3-27 (“Compounds of Formula I would
be useful for the treatment of inflammation in a subject,
and for treatment of other inflammation-associated
disorders.”) (emphasis added).
SUN PHARMACEUTICAL v. ELI LILLY 10
more than one use for the claimed compounds. The later
patent even claimed the compounds’ use for inflamma-
tion, inflammation-associated disorders, and specific
inflammation-associated disorders, including arthritis,
pain, and fever, in separate dependent claims, further
evidencing that the utilities disclosed in the specification
of the earlier patent are distinct. See ’068 patent col.108
ll.18-27. Therefore, we do not agree that Pfizer involved a
single disclosed utility that was alone essential to the
patentability of the claimed compounds.
Moreover, the analysis in the Pfizer decision shows
that obviousness-type double patenting encompasses any
use for a compound that is disclosed in the specification of
an earlier patent claiming the compound and is later
claimed as a method of using that compound. Pfizer
never implies that its reasoning depends in any way on
the number of uses disclosed in the specification of the
earlier patent. See 518 F.3d at 1363. Instead, its broad
analysis reflects that the court considered the multiple
uses for the compound that were discussed in the specifi-
cation of the earlier patent. Indeed, the Pfizer decision
ultimately invalidated claims in the later patent that
were separately directed to these multiple uses, including
inflammation, inflammation-associated disorders, and the
specific inflammation-associated disorders of arthritis,
pain, and fever. Id. at 1363 & n.9; see ’068 patent col.108
ll.18-27.
Thus, the holding of Geneva and Pfizer, that a “claim
to a method of using a composition is not patentably
distinct from an earlier claim to the identical composition
in a patent disclosing the identical use,” extends to any
and all such uses disclosed in the specification of the
11 SUN PHARMACEUTICAL v. ELI LILLY
earlier patent. 3 Pfizer, 518 F.3d at 1363; Geneva, 349
F.3d at 1385-86. Indeed, as both cases recognized,
[i]t would shock one’s sense of justice if an inven-
tor could receive a patent upon a composition of
matter, setting out at length in the specification
the useful purposes of such composition, . . . and
then prevent the public from making any benefi-
cial use of such product by securing patents upon
each of the uses to which it may be adapted.
Pfizer, 518 F.3d at 1363 n.8 (emphases added); Geneva,
349 F.3d at 1386 (quoting In re Byck, 48 F.2d 665, 666
(CCPA 1931)).
Furthermore, we reject Lilly’s argument that the dis-
trict court erred in consulting the specification of the
issued ’614 patent, as opposed to the specification of an
earlier application, to ascertain the relevant disclosed
uses of the compound gemcitabine for its obviousness-type
3 In rejecting Lilly’s proposed single, essential util-
ity test, we also note that such a test would be unwork-
able. Where an earlier patent specification describes
multiple uses for a compound, a court would be unable to
identify the one use that was “essential” or “necessary” to
patentability. Indeed, Lilly’s counsel repeatedly conceded
at oral argument that “many times [a court] may not able
to tell” which use was essential to patentability, as would
be required under Lilly’s test. Oral Arg. at 3:39-6:03,
available at http://oralarguments.cafc.uscourts.gov/mp3/2010-
1105.mp3; see id. at 9:48-10:42 (“In many cases, we con-
cede th[is] could be a difficult inquiry.”); id. at 13:20-
13:58. Additionally, the characterization of the single
essential utility might be arbitrary in application. For
example, a broadly defined “single” utility might in actu-
ality encompass multiple utilities, leading to significant
problems in applying Lilly’s proposed standard.
SUN PHARMACEUTICAL v. ELI LILLY 12
double patenting analysis. Both Geneva and Pfizer make
clear that, where a patent features a claim directed to a
compound, a court must consider the specification because
the disclosed uses of the compound affect the scope of the
claim for obviousness-type double patenting purposes. In
Geneva, we acknowledged the general rule that an earlier
patent’s specification is not available to show obviousness-
type double patenting. 349 F.3d at 1385. We have held,
however, that there are “certain instances” where the
specification of an earlier patent may be used in the
obviousness-type double patenting analysis. In re Basell,
547 F.3d at 1378. Specifically, the specification’s disclo-
sure may be used to determine whether a claim “merely
define[s] an obvious variation of what is earlier disclosed
and claimed,” “to learn the meaning of [claim] terms,” and
to “interpret[] the coverage of [a] claim.” Id. As we
recognized in Geneva, a court considering a claim to a
compound must examine the patent’s specification to
ascertain the coverage of the claim, because a claim to a
compound “[s]tanding alone . . . does not adequately
disclose the patentable bounds of the invention.” 349 F.3d
at 1385. In examining the specification of the earlier
patent, the court must consider “the compound’s disclosed
utility.” Id.
We affirmed this holding in Pfizer by rejecting the
patentee’s objection to our reliance on the specification of
the earlier patent that claimed the compounds at issue
and explaining that “[t]here is nothing that prevents us
from looking to the specification to determine the proper
scope of the claims.” Pfizer, 518 F.3d at 1363 (citing
Geneva, 349 F.3d at 1386). Thus, we have expressly held
that, where a patent claims a compound, a court perform-
ing an obviousness-type double patenting analysis should
examine the specification to ascertain the coverage of the
claim.
13 SUN PHARMACEUTICAL v. ELI LILLY
In response to Lilly’s arguments, we determine that
where such examination of the specification is appropri-
ate in an obviousness-type double patenting analysis, the
specification that must be considered is that of the issued
patent. Lilly contends that the district court should have
evaluated the ’614 patent’s claim to gemcitabine based on
the specification that existed as of the undisputed effec-
tive filing date of the ’614 patent, namely the specification
of the original ’883 application. The original ’883 applica-
tion disclosed only gemcitabine’s antiviral use, not its
anticancer use; Lilly added a description of gemcitabine’s
anticancer use to the specification in a continuation-in-
part application that eventually resulted in the ’614
patent. Lilly therefore asks this court to ignore the ’614
patent’s description of gemcitabine’s use in cancer treat-
ment, because this disclosure was not part of the original
’883 application.
To support this argument, Lilly cites only the basic
tenet of claim construction, as stated in Phillips v. AWH
Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005), that claim
terms should be given their ordinary and customary
meaning and this meaning is the one that “the term
would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effec-
tive filing date of the patent application.” Phillips, how-
ever, does not support the proposition that a court should
ignore portions of the patent specification in construing
claims. Instead, Phillips makes clear that claim terms
must be construed in light of the entirety of the patent,
including its specification, and that the specification to be
consulted is that of the issued patent, not an earlier
application.
Specifically, Phillips, as well as the rest of our claim
construction precedent, expounds that a “person of ordi-
SUN PHARMACEUTICAL v. ELI LILLY 14
nary skill in the art is deemed to read the claim term not
only in the context of the particular claim in which the
disputed term appears, but in the context of the entire
patent, including the specification.” ICU Med., Inc. v.
Alaris Med. Sys., Inc., 558 F.3d 1368, 1374 (Fed. Cir.
2009) (emphasis added); Aquatex Indus., Inc. v. Techniche
Solutions, 419 F.3d 1374, 1380 (Fed. Cir. 2005); Phillips,
415 F.3d at 1313. In other words, “the ‘ordinary meaning’
of a claim term is its meaning to the ordinary artisan
after reading the entire patent.” ICU Med., 558 F.3d at
1375 (emphasis added); Phillips, 415 F.3d at 1321. Phil-
lips further explains the “fundamental rule” that claim
terms “are construed with the meaning with which they
are presented in the patent document.” 415 F.3d at 1316
(emphasis added). As such, “[t]he construction that stays
true to the claim language and most naturally aligns with
the patent’s description of the invention will be . . . the
correct construction.” Id. (emphasis added).
In sum, our claim construction precedent establishes
that claim terms must be construed in light of the entire
issued patent. This precedent leaves no room for debate
that the relevant specification for claim construction
purposes is that of the issued patent, not an early version
of the specification that may have been substantially
altered throughout prosecution. There is no support for
Lilly’s argument that the district court should have
consulted the specification of the original ’883 application,
which was changed before the ’614 patent issued, to
construe the issued patent claims. Lilly cannot avoid
portions of the specification of the ’614 patent by resorting
to the specification as originally filed.
We note that, where necessary in the obviousness-
type double patenting analysis, consulting the specifica-
tion of the issued patent, as opposed to an earlier version
15 SUN PHARMACEUTICAL v. ELI LILLY
of the specification, is consistent with the policy behind
double patenting. As we stated in In re Kaplan, 789 F.2d
1574, 1579-80 (Fed. Cir. 1986), “[a]ll proper double pat-
enting rejections, of either type, rest on the fact that a
patent has been issued and later issuance of a second
patent will continue protection, beyond the date of expira-
tion of the first patent” of the same invention or an obvi-
ous variation thereof. In other words, the double
patenting doctrine is concerned with the issued patent
and the invention disclosed in that issued patent, not
earlier drafts of the patent disclosure and claims.
In conclusion, the district court correctly followed the
double patenting analysis of the Geneva line of cases,
which address the situation in which an earlier patent
claims a compound, disclosing the utility of that com-
pound in the specification, and a later patent claims a
method of using that compound for a particular use
described in the specification of the earlier patent. As the
district court recognized, claim 12 of the earlier ’614
patent claims the compound gemcitabine. Following our
precedent in Geneva, the district court properly consid-
ered the uses for gemcitabine disclosed in the specifica-
tion of the issued ’614 patent, specifically its use in
treating viral infections and cancer, to determine the
scope of this claim. See Geneva, 349 F.3d at 1385; Sum-
mary Judgment Order, 647 F. Supp. 2d at 824-25. In
light of the earlier ’614 patent’s description of gemcit-
abine’s use in treating cancer, the asserted claims of the
later ’826 patent, which recite a method of using gemcit-
abine to treat cancer, are not patentably distinct from the
’614 patent’s claim to gemcitabine. The asserted claims of
the later ’826 patent simply claim the anticancer use
disclosed in the specification of the ’614 patent as a
method of use claim. See Pfizer, 518 F.3d at 1363; Ge-
neva, 349 F.3d at 1385. Therefore, we affirm the district
SUN PHARMACEUTICAL v. ELI LILLY 16
court’s judgment that the asserted claims, claims 2, 6, and
7, of the ’826 patent are invalid for obviousness-type
double patenting over the ’614 patent.
AFFIRMED