There’s an expression in English that, to our knowledge, has no direct counterpart in Chinese: “even a stopped clock is right twice a day.” Yet it’s been over 2,500 days since the Federal Circuit decided Gilead Scis. v. Natco Pharma Ltd., and the decision has not been right even once. This does not undermine the insight captured by the expression, however—to achieve such a remarkable result, the Gilead panel took both hands off the obviousness-type double patenting clock. After more than seven years, we offer here a new rationale for the holding, modestly rehabilitating this decision so as to become “right twice a day,” bringing some balm to Gilead.

1. Classical Obviousness-Type Double Patenting Doctrine

Obviousness-type double patenting (OTDP) is an equitable doctrine that is intended to prevent the unjust timewise extension of a patentee’s right to exclude, as conferred by a first patent “the reference patent), by prohibiting the issuance of claims in a second patent (the challenged patent) that are not patentably distinct from the claims of the first patent. It is a judicially created doctrine grounded in public policy, to limit a patentee to one patent term per invention or improvement.

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