Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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CAFC Says Functional Claim Language Does Not Create Divided Infringement

In LifeNet Health v. LifeCell Corporation, one of the many issues the Federal Circuit decided was that functional claim language did not create a divided infringement situation, even though an independent actor could impact...more

9/26/2016 - Appeals Divided Infringement Functionality Indefiniteness JMOL Judgment As A Matter Of Law Jury Verdicts Patent Infringement Patents Written Descriptions

Magistrate Judge Nixes TB Test Kit Claims

In a “Report and Recommendation on Defendants’ Joint Motion To Dismiss,” U.S. Magistrate Judge Cabell of the U.S. District Court for the District of Massachusetts determined that TB test kit claims do not satisfy the patent...more

9/21/2016 - Method Claims Motion to Dismiss Patent Litigation Patent-Eligible Subject Matter Patents Section 101

Apotex Biosimilar Cleared Of Infringement But Pre-Marketing Notice Still Required

In what may be the first decision on the merits in a patent infringement suit brought under the Biologics Price Competition and Innovation Act (BPCIA), the U.S. District Court for Southern District of Florida has found that...more

9/20/2016 - Apotex Biosimilars BPCIA Patent Dance Patent Infringement Patents Pharmaceutical Patents

District Court Upholds Eligibility Of Personalized Medicine Method Claims For FANAPT

In Vanda Pharmaceuticals Inc. v. Roxane Labs., Inc., Judge Stark of the U.S. District Court for the District of Delaware upheld the patent eligibility of personalized medicine method claims related to Vanda’s FANAPT®...more

9/7/2016 - Patent Infringement Patent Litigation Patent-Eligible Subject Matter Patents Pharmaceutical Industry Pharmaceutical Patents

Help The USPTO Leverage Prior Art From Related Patent Applications

The USPTO is seeking input on how it can leverage prior art information available on-line in related patent applications in order to “improve patent examination quality and efficiency” and reduce “applicant’s burden to...more

9/2/2016 - Duty to Disclose Patent Application Information Retrieval (PAIR) Patent Applications Patent Examinations Prior Art Public Comment USPTO

Federal Circuit Affirms Tygacil Formulation Patent

In Apotex, Inc. v. Wyeth LLC, the Federal Circuit affirmed the decision of the USPTO Patent Trial and Appeal Board (PTAB) finding that Apotex had failed to show that claims directed to a specific formulation of tigecycline...more

8/25/2016 - Apotex Inter Partes Review Proceedings Obviousness Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patents Prior Art Reaffirmation Standard of Review

USPTO Sued Over December 2015 Holidays

Elm 3DS Innovations, LLC has sued the USPTO in the U.S. District Court for the Eastern District of Virginia to challenge its authority to declare that December 22-24, 2015 were “holidays” because the USPTO had experienced a...more

8/22/2016 - Administrative Authority Inter Partes Review Proceedings Power Outages Statutory Deadlines Ultra Vires USPTO

Construing Markush Group Claims

In Multilayer Stretch Cling Film v. Berry Plastics, the Federal Circuit provided a detailed discussion of the construction of claims that use Markush group language. The decision emphasizes the closed nature of the...more

8/19/2016 - Claim Construction Extrinsic Evidence Patent Litigation Patent Validity Patents

AbbVie Sues Amgen On 10 Of 100 Humira Patents

On August 4, 2016, Abbvie Inc. filed a complaint against Amgen, Inc. under the Biologics Price Competition and Innovation Act (BPCIA), asserting that Amgen’s application for approval of a biosimilar version of HUMIRA®...more

8/10/2016 - AbbVie Amgen ANDA Biosimilars BPCIA Commercial Marketing Patent Dance Patent Infringement Patent Litigation Pharmaceutical Industry Pharmaceutical Patents

USPTO Launches Patents 4 Patients

To support the National Cancer Moonshot initiative, the USPTO has launched the Patents 4 Patients program, also known as the Cancer Immunotherapy Pilot Program. Under this program, applicants can obtain expedited examination...more

8/3/2016 - National Cancer Moonshot Patent Applications Patent Prosecution Patents Request for Continued Examination USPTO USPTO Pilot Program

The Promise And Pitfalls Of 3D Printing

3D printing offers great promise for innovation and manufacturing, but this tool has expanded the scope of patented products that can be easily and cheaply copied, and may make it harder to identify and prosecute infringers....more

8/1/2016 - 3D Printing Bilski CLS Bank v Alice Corp Contributory Infringement FDA Induced Infringement Intellectual Property Protection Manufacturers Medical Devices Patent Infringement Patents Pharmaceutical Industry Professional Conferences USPTO

En Banc CAFC Requires UCC Sale For On Sale Bar

In an en banc decision issued in The Medicines Company v. Hospira, Inc., the Federal Circuit determined that in order for a commercial transaction to trigger the on-sale bar of § 35 USC 102(b), it must “bear the general...more

7/22/2016 - Amicus Briefs CAFC En Banc Review Hospira Manufacturers On-Sale Bar Orange Book Outsourcing Patent Invalidity Patent Litigation Patents Pharmaceutical Industry Remand Uniform Commercial Code (UCC)

USPTO Patent Eligibility Guidance In View Of CellzDirect And Sequenom

On July 14, 2016, the USPTO issued a Memorandum to the Patent Examining Corps on patent eligibility in view of recent court decisions. The July 2016 Memorandum extracts more guidance for assessing patent eligibility from the...more

7/18/2016 - CLS Bank v Alice Corp Examiners Guidance Update Life Sciences Patent Litigation Patent-Eligible Subject Matter Petition for Writ of Certiorari Pharmaceutical Patents Section 101 Sequenom USPTO

Janssen Seeks Injunction Against Remicade Biosimilar Based On Cell Culture Patent

In a complaint filed June 14, 2016, Janssen Biotech Inc. seeks a preliminary injunction that would bar Celltrion and Hospira from selling the biosimilar version of Remicade® (infliximab) that received FDA approval April 2016,...more

7/15/2016 - Actual Damages Biosimilars Confidentiality Agreements Direct Infringement Hospira Induced Infringement Injunctive Relief Janssen Pharmaceuticals On-Sale Bar Patent Infringement Patent Invalidity Patent Litigation Pharmaceutical Industry Pharmaceutical Patents Treble Damages

The PRICED Act Would Expedite Biosimilar Market Entry

Although the 12-year exclusivity period for original biologic products was a heavily negotiated provision of the Biologics Price Competition and Innovation Act (BPCIA), increased spending on biologic drugs has led to calls to...more

7/13/2016 - Biologics Biosimilars BPCIA Drug Pricing Exclusivity Pharmaceutical Industry Pharmaceutical Patents Proposed Legislation Research and Development Trans-Pacific Partnership

New USPTO P3 Program Offers Applicant Participation In After Final Conference

The USPTO has launched a new after final program available starting July 11, 2016. The Post-Prosecution Pilot Program (P3) combines features of the After Final Consideration Pilot 2.0 (AFCP 2.0) and Pre-Appeal Brief...more

7/12/2016 - Comment Period Final Action Notice of Appeal Patent Applications Patents Request for Continued Examination USPTO USPTO Pilot Program

CAFC Finds Cryopreservation Method Patent Eligible

The Federal Circuit ruled that the cryopreservation methods at issue in Rapid Litigation Mgmt. Ltd. v. CellzDirect Inc., are patent eligible under 35 USC § 101. It therefore vacated and remanded the decision of the U.S....more

7/8/2016 - CAFC CLS Bank v Alice Corp Examiners Mayo v. Prometheus Method Claims New Guidance Patent-Eligible Subject Matter Remand Section 101 USPTO Vacated

Federal Circuit Requires 180 Day Notice For All Biosimilars, Even After Patent Dance

In Amgen v. Apotex, the Federal Circuit rejected Apotex’s arguments that the 180-day pre-marketing notice requirement does not apply to biosimilar applicants who participated in the “patent dance” process of the Biologics...more

7/8/2016 - Amgen Apotex Biosimilars BPCIA Commercial Marketing FDA Approval Notice Requirements Patent Dance Patent Infringement Petition for Writ of Certiorari Pharmaceutical Industry Pharmaceutical Patents Preliminary Injunctions Sandoz v Amgen

Court Invalidates Improper Multiple Dependent Claims

In Trustees of the University of Pennsylvania v. Eli Lilly and Co., the U.S. District Court for the Eastern District of Pennsylvania refused to correct improper multiple dependent claims and instead held them invalid under 35...more

6/30/2016 - Dismissals Mistake Noninfringement Patent Invalidity Patent Litigation Patents

Supreme Court Deals Blow To Diagnostic Method Patents, Denies Cert In Sequenom

“If you can’t say something nice, don’t say anything at all” can be good words to live by, but in the context of the Supreme Court’s denial of certiorari in Sequenom, the silence is deafening–and could have a chilling impact...more

6/29/2016 - Ariosa Diagnostic Method Patent Litigation Patent-Eligible Subject Matter Personalized Medicine Petition for Writ of Certiorari Pharmaceutical Patents Section 101 Sequenom USPTO

Supreme Court Declines to Review Sequenom Ruling

The U.S. Supreme Court has denied certiorari in Sequenom, Inc. v. Ariosa Diagnostics, Inc. (No. 15-1182), declining to review the Federal Circuit’s June 12, 2015, decision that certain methods of detecting paternally...more

6/28/2016 - Ariosa CLS Bank v Alice Corp Diagnostic Method Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Petition for Writ of Certiorari Section 101 Sequenom USPTO

CAFC Upholds Same Day Continuation Applications

The Federal Circuit decided not to disturb the “longstanding administrative construction” of 35 USC § 120 that permits the filing of a continuation application on the same day its parent application grants as a patent. The...more

6/23/2016 - CAFC Continuous Applications HTC Patent Applications Patent Litigation Patents Same-Day Continuations USPTO

Supreme Court Defers Certiorari Decision In Amgen Sandoz Biosimilar Patent Dance Dispute

On June 20, 2016, instead of deciding whether to grant certiorari in the biosimilar patent dance dispute between Amgen and Sandoz, the Supreme Court invited the Solicitor General “to file a brief in this case expressing the...more

6/21/2016 - Amgen Biosimilars BPCIA Patent Dance Patent Litigation Petition for Writ of Certiorari Pharmaceutical Patents Sandoz Sandoz v Amgen SCOTUS Solicitor General

Federal Circuit Emphasizes Reason In Application Of Broadest Reasonable Interpretation

As we wait for the Supreme Court decision in Cuozzo Speed Technologies, LLC v. Lee, where the Court has been asked to decide whether the USPTO Patent Trial and Appeal Board (PTAB) should apply the “broadest reasonable...more

6/16/2016 - Broadest Reasonable Interpretation Standard Claim Construction Cuozzo Speed Technologies v Lee Examiners Inter Partes Review Proceedings Patent Litigation Patent Trial and Appeal Board USPTO

Supreme Court Adopts More Flexible Standard For Enhanced Damages For Willful Infringement

In Halo Electronics, Inc. v. Pulse Electronics, Inc., the Supreme Court rejected the Federal Circuit’s two-part Seagate test for awarding enhanced damages under 35 USC § 284, finding that both the substantive requirement for...more

6/15/2016 - 35 U.S.C. § 284 Enhanced Damages Halo v Pulse Judicial Discretion Octane Fitness v. ICON Patent Infringement Patent Litigation Patents Preponderance of the Evidence SCOTUS Seagate Willful Infringement

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