Antoinette F. Konski

Antoinette F. Konski

Foley & Lardner LLP

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Fetal Diagnostics Patent Claims Fall in Inter Partes Review

Post grant inter partes review proceedings have lowered the hurdle to invalidate U.S. patents. The “broadest reasonable construction” of the claims and the lower burden to prove invalidity (by a preponderance of the evidence)...more

12/19/2014 - Claim Construction Inter Partes Review Proceedings Patent Trial and Appeal Board Patents

USPTO Releases Revised Subject Matter Eligibility Guidance

On December 15th, 2014, the USPTO released its much anticipated revised subject matter eligibility examination guidance to assist patent examiners evaluate inventions that may be related to any one of the three judicial...more

12/17/2014 - CLS Bank v Alice Corp Guidance Update Patent-Eligible Subject Matter Patents USPTO

Another Patent Challenge for Personalized Medicine

The U.S. Supreme Court’s recent trilogy of patent-eligibility decisions (Prometheus, Myriad and Alice) have called into question the validity of many U.S. patents on diagnostic medical methods. Nevertheless, legal battles...more

12/9/2014 - Diagnostic Tests Genetic Materials Healthcare Patent Litigation Patent-Eligible Subject Matter Patents Personalized Medicine

Canada Joins the Gene Patenting Debate

Canada has joined the gene patenting debate. Children’s Hospital of Eastern Ontario (“Children’s”) sued the University of Utah Research Foundation, Genzyme Genetics, and Yale University (“Defendants”) in Canada’s Federal...more

11/24/2014 - Canada Genetic Markers Genetic Materials Patents

Federal Circuit’s Post-Alice Eligibility Analysis of Business Methods

The Federal Circuit in Ultramercial, Inc. v. WildTangent, Inc., held that an “entrepreneurial” multi-step process for distributing copyrighted media products over the Internet to consumers is not patent-eligible under 35...more

11/18/2014 - CLS Bank v Alice Corp Copyright Patent Infringement Patent-Eligible Subject Matter Patent-in-Suit Patents Section 101 WildTangent v Ultramercial

Supreme Court Asked to Review Standing in Stem Cell Challenge

The Public Patent Foundation and Consumer Watchdog (collectively “CW”) petitioned the U.S. Supreme Court on October 31, 2014, seeking reversal of the Federal Circuit’s dismissal of its appeal from a decision of the USPTO that...more

11/3/2014 - Appeals Federal Jurisdiction Inter Partes Review Proceedings Patent Litigation Patents Standing Stem cells

Myriad’s Continuing Patent Debate

On October 6, 2014, the U.S. Court of Appeals for the Federal Circuit entertained oral argument in the interlocutory appeal of the district court’s denial of Myriad’s motion for preliminary injunction against Ambry Genetics....more

10/20/2014 - Appeals CLS Bank v Alice Corp DNA Interlocutory Appeals Myriad v Ambry Patent Litigation Patent-Eligible Subject Matter Patents Pharmaceutical Patents

Myriad Set for Another Round

On Monday October 6th, the U.S. Court of Appeals for the Federal Circuit will entertain oral argument in another case involving Myriad’s BRCA1/BRCA2 diagnostic tests. In re BRCA1- and BRCA2- Based Hereditary Cancer Test...more

9/30/2014 - BRCA DNA Genetic Materials Myriad Patent Infringement Patent Litigation Patent-Eligible Subject Matter Patents

Federal Circuit Frames Test for Patent-Eligibility

Personalized medicine relies on diagnostics to analyze a patient for individualized therapy and for monitoring a patient’s health status. Some diagnostic tests use natural products, for example gene sequences, either as the...more

9/9/2014 - Patent Applications Patent Prosecution Patent-Eligible Subject Matter Patents Popular

Will the USPTO Respond to Public Feedback of Its Eligibility Guidance?

Periodically, the USPTO holds open meetings with the public to discuss its thinking on current topics relating to the patent procurement process. Late last week, the Biotechnology, Chemical and Pharmaceutical Customer...more

8/26/2014 - Mayo v. Prometheus Myriad Myriad-Mayo Patent-Eligible Subject Matter Patents Public Comment Public Procurement Policies USPTO

Yamanaka iPSC Patent Challenged

Dr. Shinya Yamanaka of Kyoto University shared the 2012 Nobel Prize in Physiology or Medicine with Dr. John B. Gurdon for their respective discoveries that mature, specialized cells can be reprogrammed to become immature...more

8/22/2014 - DNA Inter Partes Review Proceedings Patents Shinya Yamanaka USPTO

Managing IP Risk in the Age of Personalized Medicine

As discussed on Foley’s Health Care Law Today blog, personalized medicine treatment trends and innovations are leading diagnostic and therapeutic companies to form complex arrangements and partnerships with the ultimate goal...more

8/8/2014 - Confidential Information Healthcare Patents Personalized Medicine Trade Secrets

USPTO Extends Deadline to Comment on Subject Matter Eligibility Analysis

Yesterday at BIO’s session entitled “Patent-Eligibility from the Trenches: Practical Implications of the Supreme Court’s Prometheus (Mayo) and Myriad Decisions” a panel of experts and an engaged audience discussed the...more

6/27/2014 - Patent Litigation Patent-Eligible Subject Matter Patents USTPO

Federal Circuit Dismisses WARF Stem Cell Case – A Missed Opportunity

Recently in Consumer Watchdog v. Wisconsin Alumni Research Foundation, No. 2013-1377 (Fed. Cir. 2014), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Appellant Consumer Watchdog’s appeal on the...more

6/16/2014 - Appeals Article III Consumer Watchdog DNA Inter Partes Review Proceedings Litigation Strategies Myriad Patent Litigation Patent-Eligible Subject Matter Patents SCOTUS Section 101 Stem cells USPTO WARF

Patent-Eligibility of Stem Cells Under New USPTO "Myriad-Mayo" Guidance

In March, the U.S. Patent and Trademark Office (USPTO) implemented new procedures to address whether inventions that relate in whole or in part to laws of nature and naturally occurring products are patent-eligibility in...more

4/29/2014 - AMP v Myriad Mayo v. Prometheus Myriad Patent-Eligible Subject Matter Patents SCOTUS Stem cells USPTO

USPTO Issues Guidance for Examining Process Patents

On March 4th, 2014, the U.S. Patent and Trademark Office (USPTO) issued “2014 Procedures For Subject Matter Eligibility Analysis Of Claims Reciting Or Involving Laws of Nature/Natural Principles, Natural Phenomena, And/Or...more

3/7/2014 - AMP v Myriad Mayo v. Prometheus Myriad Patent Litigation Patents SCOTUS USPTO

Genentech’s Distribution of Prescribing Information to Physicians is Alleged to Infringe Method Patent

On January 31, 2014, Phigenix, Inc. (“Phigenix”) filed a lawsuit in federal district court in Georgia alleging that the sale and use of the drug Kadcyla by Genentech, Inc. (“Genentech”) infringed U.S. Patent No. 8,080,534B2,...more

2/25/2014 - Genentech Healthcare Patent Infringement Patent Litigation Patents

Computer-Aided Selection Method Fails Patent-Eligibility

In SmartGene, Inc. v. Advanced Biological Labs., S.A., No. 2013-1186 (Fed. Cir., Jan. 24, 2014), the Federal Circuit held that a patent claiming the use of a computer to implement routine mental information-comparison and...more

2/11/2014 - Patent Applications Patent-Eligible Subject Matter Patents

WARF Could Avoid Federal Circuit Review

On November 25, 2013, Consumer Watchdog (“CW”) and Wisconsin Alumni Research Foundation (“WARF”) responded to the Federal Circuit’s Order directing each party to brief whether CW, as a third party requester, has standing to...more

12/2/2013 - America Invents Act Inter Partes Review Proceedings Patent Litigation Patent Reform Patents

California Court Holds Diagnostic Claims Not Patent-Eligible

In one of the first district court decisions applying the U.S. Supreme Court’s new Myriad patent-eligibility standard, the Northern District of California held that diagnostic claims containing only conventional and existing...more

11/4/2013 - Biotechnology Diagnostic Tests DNA Genetic Materials Genetic Testing Patent-Eligible Subject Matter Patents Pharmaceutical

Update on WARF Stem Cell Patent Challenge

As reported in my July 8, 2013 post, Consumer Watchdog (formerly known as The Foundation for Taxpayer and Consumer Rights) and the Public Patent Foundation (collectively “CW”) asked the Federal Circuit to determine if in...more

9/18/2013 - Biotechnology Genetic Materials Medical Research Patent Applications Patent-Eligible Subject Matter Patents Stem cells

Patents, Genetic Testing, and Federal Funding

In a July 12, 2013 letter to Dr. Francis S. Collins of the National Institutes of Health (“NIH”), Senator Patrick J. Leahy urged the NIH to exercise its march-in rights under the Bayh-Dole Act to directly license the genetic...more

7/18/2013 - Bayh-Dole Act DNA Federal Funding Genetic Materials Genetic Testing Myriad NIH Patents

Patent-Eligibility of hESC Challenged

Now that the U.S. Supreme Court has determined that isolated, naturally-occurring genes are not patent-eligible (see, Ass’n. for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. __ (2013))(“Myriad”), Consumer Watchdog...more

7/8/2013 - AMP v Myriad Myriad Patent-Eligible Subject Matter Patents SCOTUS Stem cells

Monsanto Averts Declaratory Judgment Suit

On June 10, 2013, the U.S. Court of Appeals for the Federal Circuit held that Monsanto’s representation that it would not pursue farmers and seed sellers for patent infringement if they inadvertently use Monsanto’s patented...more

6/17/2013 - Declaratory Judgments Farms Genetically Engineered Seed Infringement Monsanto Organic Seed Growers & Trade Assn Patents

Isolated DNA Is Not Patent-Eligible

On June 13, 2013, the U.S. Supreme Court in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., __ U.S. __ (2013), held that genes and DNA fragments merely isolated from nature without alteration are not patent-eligible....more

6/17/2013 - AMP v Myriad DNA Human Genes Myriad Patent-Eligible Subject Matter Patents SCOTUS

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