On July 11, Teva filed its petition for certiorari from the Federal Circuit's second decision in its "skinny label" litigation with GSK, 7 F.4th 1320 (Fed, Cir. 2022). The petition makes many of the same arguments that Teva made before the Federal Circuit but the inconsistency of the Federal Circuit's decision in GSK with three prior decisions standout. Its yet another example of the Federal Circuit's lack of discipline in following its own precedent. While Teva rightly complains that the decision creates uncertainty around the skinny label provisions of 21 U.S.C. ' 355(j)(2)(A)(viii), the real uncertainty is created by the Federal Circuit's unfortunate habit of ignoring its own precedent upon which parties rely in making decisions.
In finding that Teva induced infringement of GSK's patent Re. 40,000 ('000) a reissue of U.S.P. 5,760,069 ('069), the Federal Circuit pieced together disparate sections of Teva's label for carvedilol along with the FDA's determination that Teva's carvedilol product was AB substitutable for GSK's carvedilol product. Such a finding was not for all purposes but only those on the Teva label. The '000 patent claimed treating congestive heart failure in combination with other drugs for a period greater than six months. The label for GSK's carvedilol product, Coreg', had three indications, post-MI LVD treatment...
