Interference No. 103,950
controversy still might have existed--had the patent on appeal
not otherwise have been held invalid--as to acts of
infringement taking place prior to 7 July 1998. Barr's ANDA
application, filed with the FDA sometime in 1995, could have
been determined to have been an act of infringement under
35 U.S.C. § 271(e)(2)(A). The statute of limitations for
alleged infringement of a patent is six years. 35 U.S.C.
§ 286. Hence, Eli Lilly could allege that an act of
infringement occurred before 7 July 1998. Whether any
practical relief could be granted under 35 U.S.C. § 271(e)(4)
is a matter we need not address.
iv.
Manual of Patent Examining Procedure, § 804.02 (7th ed.,
Rev. 1, Feb. 2000), makes the following observation (bold
added):
A rejection based on the statutory type of double
patenting can be avoided by canceling the
conflicting claims in all but one of the pending
application(s) or patent, or by amending the
conflicting claims so that they are not coextensive
in scope. A terminal disclaimer is not effective in
overcoming a statutory double patenting rejection.
The MPEP does not state the underlying rationale in
support of, or any other justification for, the policy set out
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