Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Sanofi Seeks IPR of Cabilly Patent

On July 27, 2015, Sanofi-aventis U.S. LLC and Regeneron Pharmaceuticals, Inc. filed a petition for Inter Partes Review (IPR) of the “Cabilly II” patent, U.S. Patent No. 6,331,415. The Cabilly II patent granted shortly after I...more

7/31/2015 - Biotechnology Bristol-Myers Squibb Genentech Inter Partes Review Proceedings Patent Infringement Patent Litigation Patents Regeneron Sanofi-Aventis USPTO

Can You File an RCE in That U.S. National Stage Application?

Since the implementation of the America Invents Act on September 16, 2012, and the Technical Corrections Act on January 14, 2013, Applicants have been able to delay submission of an executed inventors’ oath/declaration in a...more

7/29/2015 - America Invents Act Design Patent Federal Register Industrial Design Inventors New Regulations Patents Request for Continued Examination USPTO

Biosimilars Can Sit Out Patent Dance, But May Have To Wait Out Second Exclusivity Period

In Amgen v. Sandoz, Fed. Cir., No. 15-1499 (July 21, 2015), a divided panel of the Federal Circuit issued its first decision interpreting the Biologics Price Competition and Innovation Act (BPCIA), and did so in a manner that...more

7/23/2015 - Amgen Biosimilars BPCIA Drug Manufacturers Generic Drugs Patent Dispute Process Patent Infringement Patent Litigation Patents Pharmaceutical Manufacturers Prescription Drugs Sandoz Sandoz v Amgen

Federal Circuit Answers Questions About Covered Business Method Review Proceedings

In Versata Development Group, Inc. v. SAP America, Inc., the Federal Circuit outlined the permitted extent of judicial review of Covered Business Method (CBM) patent review proceedings conducted by the USPTO Patent Trial and...more

7/23/2015 - America Invents Act Broadest Reasonable Interpretation Standard Claim Construction Covered Business Method Patents Covered Business Method Proceedings Judicial Review Patent Infringement Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patent-Eligible Subject Matter Patents USPTO

Federal Circuit Upholds Broadest Reasonable Interpretation in Inter Partes Review

A divided Federal Circuit denied the petition for rehearing en banc that would have required the court to revisit its decision in In re Cuozzo Speed Technologies, LLC (Fed Cir 2015), that upheld the USPTO’s use of the...more

7/23/2015 - America Invents Act Broadest Reasonable Interpretation Standard Claim Construction En Banc Review Inter Partes Review Proceedings Patent Infringement Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patents Pending Legislation Petition For Rehearing Popular Post-Grant Review USPTO

Federal Circuit Finds Biosimilar Patent Dispute Resolution Procedures Optional

In Amgen v. Sandoz, a divided panel of the Federal Circuit issued its first decision interpreting the Biologics Price Competition and Innovation Act (BPCIA), and did so in a manner that appears to favor biosimilar applicants...more

7/22/2015 - Biosimilars BPCIA Generic Drugs Patent Dance Patent Infringement Patent Litigation Patents Pharmaceutical Pharmaceutical Manufacturers Popular Sandoz v Amgen Sponsors

Simultaneous Invention as Secondary Evidence of Obviousness

I do not usually write about non-precedential Federal Circuit decisions, but I could not let the discussion of “simultaneous invention” in Columbia University v. Illumina, Inc., go without comment. As if protecting patents...more

7/22/2015 - First-to-File Inventions Inventors Obviousness PATENT Act Patent Litigation Patents Prior Art

Contract Manufacturing Makes Angiomax Patents Invalid Under On Sale Bar

In The Medicines Company v. Hospira, Inc., the Federal Circuit held that a transaction with a contract manufacturer gave rise to an on sale bar that invalidated The Medicines Company’s Angiomax® patents. Are the facts of this...more

7/14/2015 - America Invents Act ANDA Disclosure Generic Drugs Manufacturers On-Sale Bar Patent Invalidity Patent Litigation Patents Pharmaceutical Patents Prior Art Transfer of Title

Federal Circuit Upholds USPTO Post-Wyeth Patent Term Adjustment Procedures

In Daiichi Sankyo Co. v. Lee, the Federal Circuit upheld the USPTO’s post-Wyeth Patent Term Adjustment (PTA) procedures, and found that the USPTO did not abuse its discretion when it limited the Interim Procedures to...more

7/7/2015 - Administrative Procedure Act Patent Litigation Patent Term Adjustment Patents Summary Judgment USPTO Wyeth

Examination Delay Earns Patent Term Adjustment Only In One Application

In Mohsenzadeh v. Lee, the Federal Circuit affirmed the district court’s decision that the USPTO’s delay in issuing a Restriction Requirement in a parent application does not earn Patent Term Adjustment (PTA) for the ensuing...more

7/3/2015 - Delays Divisional Applications Patent Applications Patent Litigation Patent Term Adjustment Patents Summary Judgment USPTO

Federal Circuit Strikes Final Blow to Celebrex Patent

In 2008, the Federal Circuit determined that claims 1-4 and 11-17 of U.S. Patent No. 5,760,068 were invalid for obviousness-type double patenting (OTDP) over a related parent patent, in part because the ‘068 patent was filed...more

6/27/2015 - Continuation-in-Part Divisional Applications Double Patent Drug Manufacturers OTDP Patent Applications Patent Invalidity Patent Litigation Patents Pfizer Pharmaceutical Manufacturers Pharmaceutical Patents Reissue Patents Safe Harbors USPTO

Federal Circuit Reverses Unreasonable PTAB Claim Construction, Upholds Idle Free Standard for Motions to Amend

The Federal Circuit decision in Microsoft Corp. v. Proxyconn, Inc., addressed several important issues relating to post-grant patent trials conducted by the USPTO Patent Trial and Appeal Board (PTAB), including the PTAB’s...more

6/24/2015 - Broadest Reasonable Interpretation Standard Claim Construction Inter Partes Review Proceedings Microsoft Motion to Amend Patent Invalidity Patent Trial and Appeal Board Patent-Eligible Subject Matter Patents Post-Grant Review Remand USPTO

USPTO Pilots Expedited Patent Appeal Program But at What Price?

In a June 15, 2015 Federal Register Notice, the USPTO announced the Expedited Patent Appeal Pilot program, which will run until 2,000 ex parte patent appeals are expedited under the program, or until June 20, 2016, whichever...more

6/19/2015 - Federal Register Inventors Patent Applications Patent Litigation Patent Term Adjustment Patent Trial and Appeal Board Patents Pharmaceutical Patents Request for Continued Examination USPTO

Federal Circuit Holds Sequenom Diagnostic Method Patent Invalid Under 101

On Friday, June 12, 2015, the Federal Circuit issued its decision in Ariosa Diagnostics, Inc. v. Sequenom, Inc., affirming the district court's finding that Sequenom’s claims are invalid under 35 USC § 101. The court's...more

6/15/2015 - Diagnostic Method Inventions Mayo v. Prometheus Myriad Patent Applications Patent Infringement Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Patents Personalized Medicine Preemption Preliminary Injunctions Sequenom Summary Judgment

Federal Circuit Finds Nunc Pro Tunc Agreement Does Not Confer Standing

The tenuous nature of an exclusive licensee’s standing to enforce a patent was something I learned early in my legal career, when I was a judicial clerk at the Federal Circuit. In Alps South LLC v. Ohio Willow Wood Co., the...more

6/11/2015 - Joinder License Agreements Nunc Pro Tunc Patent Infringement Patent Litigation Patents Standing

Federal Circuit Hears Oral Arguments in Neupogen Biosimilar Case

On June 3, 2015, the Federal Circuit heard oral arguments in Amgen v. Sandoz regarding the patent dispute resolution provisions of the Biologics Price Competition and Innovation Act (BPCIA). As reflected in Judge Lourie’s...more

6/4/2015 - Amgen Biologics BPCIA Oral Argument Patent Litigation Patents Pharmaceutical Manufacturers Pharmaceutical Patents Sandoz v Amgen

Another Sequenom Patent Appeal Heads to the Federal Circuit

While Sequenom’s appeal of the district court’s summary judgment of invalidity of U.S. Patent 6,258,540 under 35 USC § 101 has been pending at the Federal Circuit, the USPTO has been considering the validity of the patent...more

6/3/2015 - Appeals DNA Inter Partes Review Proceedings Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Patents Sequenom

Dependent Claims Give Rise to Improper Broadening Reissue

In ArcelorMittal France v. AK Steel Corp., the Federal Circuit found that the addition of a dependent claim to a reissue application improperly broadened the scope of the original independent claims beyond the two-year period...more

5/28/2015 - Claim Construction Law-of-the-Case Patent Infringement Patents Reissue Patents

Patent Safe Harbor Applies to Supplemental New Drug Applications

On May 13, 2015, the Federal Circuit confirmed in Classen Immunotherapies, Inc. v. Elan Pharmaceuticals, Inc. that the safe harbor provisions of 35 U.S.C. § 271(e)(1) can shield post-FDA approval activities from liability for...more

5/22/2015 - Classen Immunotherapies Elan Pharmaceuticals FDA Patent Litigation Patents Pharmaceutical Manufacturers Pharmaceutical Patents Safe Harbors

Federal Circuit Finds No Direct Infringement of Akamai Patents

The Federal Circuit issued its remand decision in Akamai Technologies, Inc. v. Limelight Networks, Inc., this time affirming the district court decision that Limelight was not liable for infringing Akamai’s patents because...more

5/20/2015 - Direct Infringement Induced Infringement Limelight v Akamai Patent Infringement Patent Litigation Patents

First Look at False Marking Under the AIA

In Sukumar v. Nautilus, Inc., the Federal Circuit took its first look at the standing requirements to bring a false marking case under the American Invents Act (AIA). The court rejected Nautilus’ arguments that only “market...more

5/15/2015 - America Invents Act False Marking Market Participants Nautilus Inc Patent Litigation Patents Private Right of Action

California Supreme Court Scrutinizes Reverse Payment ANDA Settlements

In In Re Cipro Cases I & II, the California Supreme Court laid out a four-part rule of reason analysis for evaluating ANDA settlements that involve a reverse payment to the generic challenger (also referred to as “pay for...more

5/14/2015 - ANDA Antitrust Provisions Bayer CA Supreme Court Cipro Class Action Generic Drugs Pay-For-Delay Pharmaceutical Manufacturers Pharmaceutical Patents

Federal Circuit Keeps Sandoz Biosimilar Off the Market for Now

The Federal Circuit is set to hear oral arguments in Amgen v. Sandoz on June 3, but in the meantime has granted Amgen’s motion for a preliminary injunction to keep Sandoz’ biosimilar version of Neupogen® off the market until...more

5/7/2015 - Appeals Biosimilars BPCIA Oral Argument Patent Litigation Patents Preliminary Injunctions Sandoz v Amgen

Keeping Up With Kyle Bass

In the few weeks since I first wrote about Kyle Bass and the Coalition for Affordable Drugs he formed to challenge Orange Book-listed patents that he believes “have little value other than to drive up prescription drug...more

5/6/2015 - Inter Partes Review Proceedings Orange Book Patent-in-Suit Patents Pharmaceutical Patents

Why the Grace Period Restoration Act Is a Bad Idea

Representatives Sensenbrenner (R-WI) and Conyers (D-MI) have introduced the “Grace Period Restoration Act of 2015? (H.R. 1791) to “correct the drafting problem in the Leahy-Smith American Invents Act relating to the grace...more

5/1/2015 - America Invents Act Grace Period Inventors Patents Proposed Legislation USPTO

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