Case: 20-1673 Document: 60 Page: 1 Filed: 11/30/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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MYLAN PHARMACEUTICALS INC.,
Appellant
v.
BIOGEN MA INC.,
Appellee
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2020-1673
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2018-
01403.
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Decided: November 30, 2021
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NATHAN K. KELLEY, Perkins Coie, LLP, Washington,
DC, argued for appellant. Also represented by SHANNON
BLOODWORTH, BRANDON MICHAEL WHITE; DAVID LEE
ANSTAETT, ANDREW DUFRESNE, EMILY JANE GREB, Madi-
son, WI; DAN L. BAGATELL, Hanover, NH; COURTNEY
PROCHNOW, Los Angeles, CA; MATTHEW GREINERT, Mylan,
Canonsburg, PA.
WILLIAM F. LEE, Wilmer Cutler Pickering Hale and
Dorr LLP, Boston, MA, argued for appellee. Also
Case: 20-1673 Document: 60 Page: 2 Filed: 11/30/2021
2 MYLAN PHARMACEUTICALS INC. v. BIOGEN MA INC.
represented by ANNALEIGH E. CURTIS, MADELEINE C.
LAUPHEIMER, LISA JON PIROZZOLO; SCOTT G. GREENE, New
York, NY; THOMAS SAUNDERS, Washington, DC; PAUL
WILLIAM BROWNING, PIER DEROO, MARK J. FELDSTEIN,
CORA RENAE HOLT, BARBARA CLARKE MCCURDY, JAMES B.
MONROE, ERIN SOMMERS, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC.
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Before O’MALLEY, REYNA, and HUGHES, Circuit Judges.
REYNA, Circuit Judge.
Mylan Pharmaceuticals, Inc., appeals the Patent Trial
and Appeal Board’s Final Written Decision of an inter
partes review proceeding, in which Mylan challenged
claims 1–20 of Biogen MA, Inc.’s United States Patent
8,399,514 (the ’514 Patent). See Mylan Pharms. Inc. v.
Biogen MA Inc.¸ No. IPR2018-01403, 2020 WL 582736,
at *1–2 (P.T.A.B. Feb. 5, 2020). The ’514 Patent claims a
method for the treatment of multiple sclerosis with a drug
called dimethyl fumarate, a fumaric-acid ester compound,
at a specific dose of 480 milligrams per day. ’514 Patent
col. 27 ll. 59–67. The Board found that Mylan failed to
demonstrate by preponderant evidence that the challenged
claims were unpatentable as obvious over a combination of
prior-art references. Mylan Pharms.¸ 2020 WL 582736,
at *1–2. The Board further determined that Biogen pre-
sented sufficient evidence of unexpected results to over-
come Mylan’s obviousness challenge. Id. at *16–19,
*23–24.
On appeal, Mylan argues that the Board based its pa-
tentability determination on an erroneous analysis of sec-
ondary considerations of nonobviousness. Appellant’s
Br. 17. Mylan further contends that the Board violated the
Administrative Procedure Act by issuing a determination
limited only to unexpected results, while ignoring the par-
ties’ dispute over the other three objective indicia of
Case: 20-1673 Document: 60 Page: 3 Filed: 11/30/2021
MYLAN PHARMACEUTICALS INC. v. BIOGEN MA INC. 3
nonobviousness. Id. at 18. Biogen counters that the Board
did not err in upholding the patentability of the challenged
claims because Biogen presented strong evidence of unex-
pected results, and there is no requirement that the Board
consider all objective indicia before it makes a nonobvious-
ness determination. Appellee’s Br. 32–33, 47–48.
In Biogen, the companion case to this appeal, we held
that the ’514 Patent is invalid for lack of written descrip-
tion under 35 U.S.C. § 112, see Biogen Int’l GmbH v. Mylan
Pharms. Inc., No. 20-1933, __ F.4th __ (Fed. Cir. 2021).
Consequently, we need not reach the merits of the parties’
arguments in this case. The holding of lack of written de-
scription in Biogen is dispositive of the Board’s patentabil-
ity determination. We have considered the parties’
remaining arguments and find no reason to hold otherwise.
AFFIRMED