With regard to the second requirement of the anti-SLAPP statute, and in support of its assertion that "[a] reasonable person reviewing all the facts could conclude that claim 4 of the '149 patent is obvious and therefore nonpatentable," FFC states that "after carefully reviewing evidence as presented in district court, an esteemed judge of the Federal Circuit, in a strongly worded opinion, stated that claim 4 of the '149 patent is indeed obvious and therefore nonpatentable and invalid." FFC's reference is to Judge Dyk's concurring-in-part and dissenting-in-part opinion in Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286 (Fed Cir. 2013). FFC also notes that the standard before the Federal Circuit (clear and convincing evidence) is higher than the standard before the Board (preponderance of the evidence), and therefore asserts that "the defendants were unsuccessful [in the Allergan, Inc. v. Sandoz Inc. case] because they were required to prove by clear and convincing evidence that claim 4 of the '149 patent was obvious" (emphasis in original).

.[24] Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286, 1294 (Fed. Cir. 2013).[26] PAR Pharm., Inc. v. TWI Pharm., Inc., 2014 WL 6782649, at *7 (Fed. Cir.

Thus the panel remanded, after further finding that the District Court had not erred in finding both a motivation to combine the cited art and a reasonable expectation of success in producing the claimed formulations. In coming to these conclusions the panel rejected Par's contention that the skilled worker would not have combined the art to achieve the claimed effect, reminding the parties (and us) that the motivation identified by a court need not be the same motivation that compelled the inventors, citing Allergan, Inc. v. Sandoz, Inc., 726 F.3d 1286, 1292 (Fed. Cir. 2013). This principle addressed Par's challenge that motivation to combine could not have been present because the art did not recognize the benefits of the combination with regard to the food effect discovered by the patentees.

The Court, like the district court, rejected Par's argument that there was no motivation to combine because a person of ordinary skill at the time of the invention would not have known of a food effect for Megace OS, noting that "[m]otivation to combine may be found in many different places and forms." Id. at 18 (alteration in original) (quoting Allergan, Inc. v. Sandoz, Inc., 726 F.3d 1286, 1292 (Fed. Cir. 2013)). The Court held that the district court did not err in finding a motivation to combine megestrol with nanoparticle technology due to the known viscosity and interpatient variability problems with micronized megestrol.

2012), holding a patent claim to a combination drug product nonobvious when the combination produced greater efficacy than each active ingredient on its own). The rationale in Sanofi tracks another recent opinion of the court in Allergan Incorporated v. Sandoz Incorporated, 726 F.3d 1286, 1294 (Fed. Cir. 2013). There, the Federal Circuit sustained the validity of a claim to a method of treating glaucoma or ocular hypertension with a combination of brimonidine and timolol, relying primarily on evidence that the claimed combination was surprisingly no less effective, and had a better side effect profile, at the claimed reduced dosage amounts (twice daily administration instead of three times per day).