The U.S. Supreme Court’s recent decision to deny certiorari in In re: Cellect plays a significant role in shaping the understanding of obviousness-type double patenting (ODP). This case, alongside the ruling in Allergan USA Inc. v. MSN Laboratories Private, contributes to the judicial landscape concerning ODP.
ODP continues to pose pertinent issues for patent holders, but according to recent judicial interpretations, it is not universally fatal. Notably, the distinction is drawn where divisional applications are concerned, as these filings remain insulated from ODP challenges—a crucial factor that practitioners should consider moving forward. The deliberations in these cases reflect an evolving approach that underscores the necessity of addressing ODP alignments throughout the patent prosecution process.