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After Miller, OTDP became an established doctrine of patent law, implicitly sanctioned by Congress in the legislative history of certain amendments to the statute.
That is, at least some of the claims in the second patent invalidated for OTDP only claimed a subset of the methods disclosed in the first patent and therefore were not necessary to establish the patentable utility of the chemical compound.
Against this backdrop, in 2010 the Federal Circuit took up the issue of OTDP in Sun Pharmaceutical Industries, Ltd.
OTDP is best rationalized as a judicial exception to the statutory prohibition against using an earlier patent as 102(e)/103 prior art in cases where the patents share a common inventor or common ownership.
Congress has recognized this relationship between section 103 and OTDP. For example, when Congress extended the section 103(c) safe harbor to include not only commonly assigned patents, but also patents assigned to different entities involved in a joint research venture, it noted that OTDP should apply to patents assigned to companies involved in a joint research venture falling under 103(c).
(266) In other words, the second patent would have been valid if they had not been commonly owned, since OTDP would not have applied, and the second patent was not invalid under section 103.
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