TEVA PHARMACEUTICALS INTERNATIONAL GMBH v. Andrew Hirshfeld, Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenor (2021)

Teva Pharmaceuticals International GmbH (“Teva”) appeals from a combined final written decision of the U.S. Patent and Trademark Office Patent Trial and Appeal Board (“Board”) holding that the claims of U.S. Patents 9,346,881 (“ ’881 patent”), 9,890,211 (“ ’211 patent”), and 8,597,649 (“ ’649 patent”) are unpatentable because they would have been obvious over the cited prior art. Eli Lilly and Company v. Teva Pharmaceuticals International GmbH, Nos. IPR2018-014264, IPR2018-01427, 2020 WL 808240 (P.T.A.B. Feb. 18, 2020) (“Board Decision”). For the following reasons, and for the reasons set forth in our opinion in Appeal Nos. 2020-1747, 2020-1748, and 2020-1750 issued this day, we affirm.

This appeal pertains to three inter partes reviews (“IPR”). Eli Lilly and Company (“Lilly”) filed petitions challenging claims in ’881, ’211, and ’649 patents directed to humanized antagonist antibodies that target calcitonin gene-related peptide (“CGRP”). On February 18, 2020, the Board issued a combined final written decision holding the challenged claims in all three patents unpatentable. On the same day, the Board issued a combined final written decision in three other IPRs between the same parties, holding unpatentable the claims in three related patents, all directed to humanized antagonist antibodies that target CGRP. See Eli Lilly and Company v. Teva Pharmaceuticals International GmbH, Nos. IPR2018-01423, IPR2018-01425, 2020 WL 806932 (P.T.A.B. Feb. 18, 2020).

Teva filed six appeals from the Board's two combined final written decisions. We consolidated the six appeals into two sets of three, in line with the Board's two combined final written decisions. In the two consolidated appeals, the parties made substantively identical arguments, mostly copied and pasted verbatim from one case to the other. Teva included the following footnote in its opening brief:

In a second decision issued the same day, the Board also held unpatentable the challenged claims of three related composition patents. That decision, which is materially identical in reasoning, is the subject of Teva's companion appeal no. 20-1747. Teva's arguments in the two appeals are the same․

Teva Opening Br. at 13 n.6. A corresponding footnote appears in Teva's opening brief in Appeal No. 2020-1747. Lilly did not dispute that the parties’ arguments in the two appeals are the same. During the combined oral argument in the two consolidated appeals, neither party argued that any one of the six appeals should be decided differently from the others.

Accordingly, for the reasons set forth in our opinion in Appeal Nos. 2020-1747, 2020-1748, and 2020-1750 issued this day, we affirm the Board's combined final written decision holding unpatentable the challenged claims in the ’881, ’211, and ’649 patents.

AFFIRMED

Lourie, Circuit Judge.