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Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP


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Supreme Court Finds for Monsanto in Seed Harvesting Case

In Bowman v. Monsanto Co., the Supreme Court held that the doctrine of patent exhaustion does not give a farmer who has bought patented seeds the right to “reproduce” them through planting and harvesting without the patent...more

5/16/2013 - Bowman v Monsanto Genetically Engineered Seed Infringement Monsanto Patent Exhaustion Patents SCOTUS Seeds

Federal Circuit Issues Fractured Affirmance in CLS Bank v. Alice Corporation

In a fractured en banc decision, the Federal Circuit affirmed the district court’s holding that the claims at issue in CLS Bank v. Alice Corporation are invalid under 35 USC § 101. The multiple opinions reveal the judge’s...more

5/13/2013 - CLS Bank CLS Bank v Alice Corp Patent-Eligible Subject Matter Patents SCOTUS

USPTO Reshuffles the RCE Deck

The USPTO still is considering information gathered during its RCE Outreach program, but it has made some internal changes that should lead to more prompt examination after a Request for Examination (RCE) is filed....more

5/9/2013 - Request for Examination USPTO

Federal Circuit Upholds One Claim Covering Combigan

In Allergan, Inc. v. Sandoz, Inc., the Federal Circuit reversed the district court in part, finding that Allergan’s composition claims and most of its method claims are invalid as obvious, but upholding one method claim...more

5/8/2013 - Allergan Inc Combination Products Hatch-Waxman Nonobviousness Patents

Federal Circuit Holds That Patent Indefiniteness Requires Insoluble Ambiguousness

In Biosig Instruments, Inc. v. Nautilus Inc., the Federal Circuit reversed the district court’s finding that the claims at issue were invalid as indefinite, because the claims were not “insolubly ambiguous.” This case...more

5/3/2013 - Ambiguous Claim Construction Indefiniteness Infringement Medical Devices Patents

Dispelling the Myriad Gene Patent Harmonization Myth

In the wake of the Supreme Court oral arguments in the Myriad “gene patent” case, most commentators are predicting that the Court will uphold the patent-eligibility of non-naturally occurring DNA sequences (such as cDNA), but...more

5/1/2013 - DNA EU Gene Patenting Human Genes Patent-Eligible Subject Matter

Federal Circuit Finds Yaz Patent Obvious

In Bayer Healthcare Pharmaceuticals, Inc. v. Watson Pharmaceuticals, Inc., the Federal Circuit reversed the district court and held that Bayer’s patent covering its Yaz® birth control pill product is invalid as obvious. The...more

4/26/2013

Challenging the Enabling Quality of Prior Art

In In re Morsa, the Federal Circuit reversed an anticipation rejection where the applicant had challenged the enabling quality of the cited prior art reference, even though the applicant had not submitted evidence in support...more

4/19/2013 - Enablement Inquiries Patent Applications Prior Art USPTO

Federal Circuit Finds Patent Marking is Circumstantial Evidence of Infringement

In Frolow v. Wilson Sporting Goods Co., the Federal Circuit refused to adopt the doctrine of marking estoppel, but held that evidence that Wilson had marked some accused tennis racket models constituted evidence of...more

4/12/2013 - Evidence Infringement Marking Estoppel Patents Wilson Sporting Goods

Pinpointing Invention Conception Date in a Patent Interference

In Dawson v. Dawson, the Federal Circuit considered an unusual case with a question that often arises in interferences: when did the inventor invent the subject matter at issue. While the decision does not break new ground in...more

4/10/2013 - Conception Date Interference Proceeding Inventors Patents Reduction to Practice

USPTO Rules Eliminate Inter Partes Review Dead Zone

On March 25, 2013, the USPTO published final rule changes to “Implement the Technical Corrections to the Leahy-Smith America Invents Act as to Inter Partes Review.” The rule changes have an effective date of March 25, 2013,...more

4/5/2013

USPTO Implements Significant Patent Term Adjustment Changes Pursuant to the AIA Technical Corrections Act

On April 1, 2013, the USPTO published an “interim final rule” relating to Patent Term Adjustment (PTA), to implement changes to the PTA statute embodied in the AIA Technical Corrections Act. Although the rule changes have an...more

4/2/2013 - America Invents Act Patent Term Adjustment Patents USPTO

Briefing the Supreme Court in Myriad

March 15, 2013 was a big deadline for patent applicants seeking to secure first-to-invent filing dates for U.S. patent applications, but April 15 will be a big day for the biotechnology industry, when the Supreme Court hears...more

3/29/2013 - Biotechnology Gene Patenting Myriad Patents SCOTUS The Association of Molecular Pathology v Myriad Genetics

Australia’s April 12 Deadline for Raising the Bar

Now that we have made it past the March 16, 2013 effective date of the first-inventor-to-file provisions of the America Invents Act, it is time to turn our attention to Australia, and the April 15, 2013 effective date of the...more

3/27/2013 - Experimental Use Exception Patent Applications Patents Raising The Bar Act Regulatory Use Exception

Federal Circuit to Reconsider De Novo Review of Claim Construction

In a nonprecedential order issued March 15, 2013, the Federal Circuit granted rehearing en banc in Lighting Ballast Control, LLC v. Philips Electronics North America Corp., to consider the following questions: 1. ...more

3/21/2013 - Claim Construction Cyber Corp v FAS Technologies Motion To Reconsider Patents

Preserving First-to-Invent Status Under the America Invents Act

Now that the first-inventor-to-file provisions of the America Invents Act (AIA) have taken effect, stakeholders should understand how to preserve the first-to-invent status of patent applications that were filed before March...more

3/19/2013 - America Invents Act First-to-File First-to-Invent Patent Applications Patents USPTO

Federal Circuit Draws the Equitable Estoppel Line Before a CIP Patent

In Radio Systems Corp. v. Lalor, the Federal Circuit held that equitable estoppel barred Bumper Boy’s infringement charges based on one patent, but did not preclude infringement charges based on a continuation-in-part (CIP)...more

3/15/2013 - CIP Patents Equitable Estoppel Infringement Patents

Federal Circuit Finds Obviousness-Type Double Patenting Without Common Ownership

Obviousness-type double patenting usually arises between commonly-owned patents or patent applications. While the USPTO has interpreted the judicially-created doctrine as pertaining when there is common or overlapping...more

3/13/2013 - Common Ownership Obviousness Patent Applications Patents

Does The Experimental Use Exception Survive The AIA?

Now that the March 16, 2013 effective date of the first-to-file provisions of the Leahy-Smith America Invents Act (AIA) is fast-approaching, I have been reviewing the commentary in the USPTO’s February 14, 2013 Federal...more

3/8/2013 - America Invents Act Experimental Use Exception First-to-File Patents Pharmaceutical Public Use

Supreme Court Holds a Gunn to Exclusive Federal Court Jurisdiction Over Patent Malpractice Claims

In Gunn v. Minton, the Supreme Court held that federal courts do not have exclusive jurisdiction over patent malpractice claims. Under 28 USC § 1338(a), federal courts have exclusive jurisdiction over cases “arising under any...more

2/28/2013 - Attorney Malpractice Grable Factors Gunn v Minton Infringement Patents SCOTUS

Federal Circuit Upholds Fentora Patents, But Affirms Non-Infringement

In Cephalon, Inc. v. Watson Pharmaceuticals, Inc., the Federal Circuit reversed the district court’s finding that two Orange Book-listed patents for Cephalon’s FENTORA® product were invalid, but affirmed the district court’s...more

2/26/2013 - ANDA Cephalon Enablement Inquiries FENTORA Infringement Noninfringement Patents Pharmaceutical Written Descriptions

Maximizing the Effect of Patent Applications as Prior Art Under the AIA

Now that we are less than one month away from implementation of the First-Inventor-To-File provisions of the America Invents Act (AIA), stakeholders are considering whether to file new patent applications now, to secure...more

2/22/2013 - America Invents Act First-to-File First-to-Invent Patent Applications Patents Prior Art

A First Look at the Final First Inventor to File Rules

The USPTO’s final First Inventor To File rules and Examination Guidelines were published in the February 14, 2013 edition of the Federal Register. While many of the final rules are identical to the proposed rules, there are...more

2/19/2013 - First-to-File Foreign Priority Applications Ipsissimis Verbis Identity Patents Prior Art Same Subject Matter Requirement Third-Party Transition Applications USPTO

USPTO Considers Best Practices to Improve Patent Application Quality

In a Federal Register Notice published January, 13, 2013, the USPTO asks the public to consider potential best practices aimed at improving patent application quality ”in order to facilitate examination and bring more...more

2/15/2013 - Infringement Noninfringement Patent Applications Patents Prior Art Software USPTO

International Harmonization of Patent Laws

The USPTO and other patent offices around the world are studying the feasibility of the international harmonization of patent laws....more

2/12/2013 - International Harmonization Patents Tegernsee Group USPTO

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