After more than two decades of being the red-headed stepchild of patent infringement before the Federal Circuit, infringement under the doctrine of equivalents has made a dramatic comeback in the past few years, the Court...more
Any patent litigant unwilling to acquiesce to an adverse judgment from the Patent Trial and Appeal Board (PTAB) can appeal to the Federal Circuit. 28 U.S. Code § 141. But the right to appeal is not the same as the wisdom of...more
Stipulating to infringement after a contrary claim construction is a conventional stratagem for a losing party to have a final judgment that can be challenged before the Federal Circuit. The risk of course, is that if the...more
The transcendental conundrum in patent law in these times is how to overcome the misinterpretation of the Supreme Court's decisions on patent eligibility law by district courts and the Federal Circuit. That these courts...more
12/17/2020
/ Abstract Ideas ,
Biotechnology ,
CLS Bank v Alice Corp ,
DNA ,
Intellectual Property Protection ,
Mayo v. Prometheus ,
Natural Products ,
Patent Litigation ,
Patent-Eligible Subject Matter ,
Patents ,
Section 101
Trial courts tend to get more than the benefit of the doubt when their decisions are viewed under the "abuse of discretion" standard, and juries similarly are affirmed unless there isn't substantial evidence supporting their...more
12/7/2020
/ Abuse of Discretion ,
Appeals ,
Claim Construction ,
Damages ,
JMOL ,
Judgment As A Matter Of Law ,
Motion For New Trial ,
Patent Infringement ,
Patent Litigation ,
Patent Prosecution History ,
Patents ,
Prior Art
Interferences were rendered unnecessary with the passage of the Leahy-Smith America Invents Act in 2011, but they linger in disputes between patents and applications claiming priority to applications filed before the change...more
It has long been understood that claim construction can, and frequently is, dispositive in patent litigation. This truism was the basis for the Federal Circuit affirming the District Court's decision against a generic drug...more
The Federal Circuit has taken the occasion, in appeals from the Patent Trial and Appeal Board as well as district courts, to remand judgments whenever the Court believes that the record below is devoid of sufficient detail to...more
Venue in patent cases has been a topic of recent Supreme Court (TC Heartland LLC v. Kraft Foods Group Brands LLC) and Federal Circuit (In re Cray) consideration. Last month, the Federal Circuit again considered venue with...more
Almost three weeks ago, on October 31st, Junior Party the University of California/Berkeley, the University of Vienna, and Emmanuelle Charpentier (collectively, "CVC") filed its priority motion in Interference No. 106,115,...more
Somewhat remarkably, there is no settled Federal Circuit precedent regarding where a patentee can bring suit against a generic competitor in Hatch-Waxman litigation under 35 U.S.C. § 271(e)(2). While recognizing that this...more
11/11/2020
/ Abbreviated New Drug Application (ANDA) ,
Biosimilars ,
Federal Rule 12(b)(6) ,
Foreign Defendants ,
FRCP 12(b)(3) ,
Generic Drugs ,
Hatch-Waxman ,
Motion to Dismiss ,
Mylan Pharmaceuticals ,
Patent Infringement ,
Patent Litigation ,
Patents ,
Personal Jurisdiction ,
Pharmaceutical Industry ,
Pharmaceutical Patents ,
Prescription Drugs ,
Principal Place of Business ,
Venue
Since the Patent Trial and Appeal Board (PTAB) rendered its decisions on Motions in Interference No. 106,115, Senior Party The Broad Institute, Harvard University, and the Massachusetts Institute of Technology (collectively,...more
Federal Circuit Refuses to Issue Stay in Mandate Pending Certiorari Decision -
One of the most interesting (albeit troubling) decisions by the Federal Circuit in the past year or so was its decisions, by a panel and then...more
At least some of the judges on the Federal Circuit have been reported to have voiced some frustration regarding the number of appeals of decisions by the Patent Trial and Appeal Board that are on the Court's docket,...more
The Federal Trade Commission carried out an (in)famous crusade against reverse payment (more provocatively, "pay for delay") settlements in ANDA litigation for almost a decade before eventually having the Supreme Court see...more
In the Patent Trial and Appeal Board's decision on motions issued September 10th in Interference No. 106,115 between Senior Party The Broad Institute, Harvard University, and the Massachusetts Institute of Technology...more
Novelty is perhaps the principal, most fundamental requirement for patentability, and depriving the public of anything in the prior art must be avoided. The Federal Circuit recently reinforced the primacy of these rubrics in...more
For those with long memories, last August the Patent Trial and Appeal Board received proposed motions from the parties (University of California/Berkeley, the University of Vienna, and Emmanuelle Charpentier, Junior Party,...more
On September 10th, the Patent Trial and Appeal Board rendered its decision on the parties' Motions in Interference No. 106,115 (see "PTAB Decides Parties' Motions in CRISPR Interference"). Perhaps the decision of most...more
Having heard oral argument at a hearing held on Monday, May 18th, the Patent Trial and Appeal Board recently entered its decision on these motions in Interference No 106,115 between Senior Party The Broad Institute, Harvard...more
On September 3rd, the Federal Circuit affirmed under Rule 36 the decision by the District Court of Nevada (Du, J.) in March that the claims asserted by Amarin Pharma against West-Ward Pharmaceuticals International Ltd., Hikma...more
9/5/2020
/ Amarin ,
Appeals ,
Generic Drugs ,
Obviousness ,
Patent Infringement ,
Patent Invalidity ,
Patent Litigation ,
Patents ,
Pharmaceutical Patents ,
Reaffirmation ,
Rule 36
The Federal Circuit recently applied well-established principles of obviousness in affirming the Patent Trial and Appeals Board's invalidation of several patents related to antifungal formulations in Anacor Pharmaceuticals,...more
The Federal Circuit's inchoate attempts to fashion a consistent, rational application of the Supreme Court's recent subject matter eligibility jurisprudence, while understandably Herculean in view of the difficulties inherent...more
8/26/2020
/ Abstract Ideas ,
Appeals ,
Claim Construction ,
Denial of Rehearing ,
Dissenting Opinions ,
Judges ,
Patent Invalidity ,
Patent Litigation ,
Patent-Eligible Subject Matter ,
Patents ,
Product of Nature Doctrine ,
Reaffirmation ,
Section 101
ANDA litigation, pursuant to the Hatch-Waxman Act, has become more complicated over the years since enactment of the statute in 1984, with more patents being asserted and more parties participating over the opportunity to...more
8/24/2020
/ Abbreviated New Drug Application (ANDA) ,
Appeals ,
Generic Drugs ,
Hatch Act ,
Irreparable Harm ,
Likelihood of Success ,
Marketing Exclusivity Periods ,
Mylan Pharmaceuticals ,
Orange Book ,
Patent Infringement ,
Patent Litigation ,
Patents ,
Pay-For-Delay ,
Pharmaceutical Patents ,
Preliminary Injunctions ,
Takeda Pharmaceuticals
The Federal Circuit has spent the past few years applying the Supreme Court's most recent precedent, Nautilus, Inc. v. Biosig Instruments, Inc., on the indefiniteness standards in the patent statute. 35 U.S.C. § 112(b). The...more
8/14/2020
/ Appeals ,
Claim Construction ,
Extrinsic Evidence ,
Indefiniteness ,
Nautilus Inc. v. Biosig Instruments ,
Patent Infringement ,
Patent Invalidity ,
Patent Litigation ,
Patents ,
Pharmaceutical Patents ,
Popular ,
Reaffirmation