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Prescription Drug Dispensing Patent Found Unpatentable

April 04, 2001

Decision icon Decision

Last Month at the Federal Circuit - May 2001

Judges: Bryson, Gajarsa, and Linn (per curiam)

In In re Tereschouk, No. 01-1112 (Fed. Cir. Apr. 4, 2001) (nonprecedential decision), the Federal Circuit affirmed a final rejection of all the claims of Michael Tereschouk’s U.S. Patent Application No. 08/490,903 concerning a method for automatically distributing drugs to the holder of a pre-encoded portable medical data carrier.

Tereschouk’s argument on appeal boiled down to one proposition: that in the prior art, supervision necessarily occurs at the drug-dispensing stage, usually by a pharmacist. The elimination of such supervision, according to Tereschouk, provides a requisite distinction to overcome any obviousness rejection.

The Federal Circuit concluded that the fact that the prior art recognizes the legal requirement for a licensed professional to participate in drug dispensing does not mean that the elimination of the pharmacist’s participation constitutes patentable novelty. Moreover, the claims in question did not expressly require the presence or absence of a pharmacist.