Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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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

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

Jazz Xyrem + Valproate Patent Claims Avoid IPR

The USPTO Patent Trial and Appeal Board (PTAB) decided not to institute inter partes review (IPR) of key claims of Jazz’s U.S. Patent 8,772,306, which is listed in the Orange Book for Xyrem®. Although the PTAB did institute...more

4/18/2016 - Generic Drugs Inter Partes Review Proceedings Jazz Pharmaceuticals Obviousness Patent Litigation Patent Trial and Appeal Board Pharmaceutical Industry

Second Time Is The Charm For Kyle Bass Challenges Of Ampyra Patents

The USPTO Patent Trial and Appeal Board (PTAB) has decided to institute inter partes review (IPR) proceedings against the Ampyra patents based on the second set of petitions filed by Kyle Bass and the Coalition for Affordable...more

4/1/2016 - Estoppel Inter Partes Review Proceedings Patent Invalidity Patent Litigation Patent Trial and Appeal Board Pharmaceutical Patents Printed Publications Prior Art

PTAB Institutes Kyle Bass IPRs Against Juxtapid Patents

The USPTO Patent Trial and Appeal Board (PTAB) decided to institute inter partes review (IPR) proceedings filed by Kyle Bass against two of the five Juxtapid patents listed in the Orange Book. Two of the cited references may...more

3/16/2016 - Inter Partes Review Proceedings Orange Book Patent Litigation Patent Owner Preliminary Response Patent Trial and Appeal Board Prior Art Priority Disputes Provisional Applications

Amgen Launches Enbrel Biosimilar Patent Litigation

Although Sandoz’ application for FDA approval to market a biosimilar version of ENBREL® (etanercept) has yet to be approved, Amgen has brought suit under the Patent Act and Biologics Price Competition and Innovation Act...more

3/4/2016 - Amgen Biosimilars BPCIA Inter Partes Review Proceedings Patent Dance Patent Infringement Patent Litigation Patent Trial and Appeal Board Pharmaceutical Patents Sandoz Sandoz v Amgen

Asset Transferee Cannot Appeal Reexamination

The Federal Circuit dismissed the appeal in Agilent Technologies, Inc. v. Waters Technologies Corp., because the appellant was not a “third-party requester” dissatisfied with the final decision in an inter partes...more

2/5/2016 - Asset Transfer Inter Partes Reexamination Inter Partes Review Proceedings Patent Litigation Patent Trial and Appeal Board Right To Appeal Standing Successors

PTAB Denies Challenge Of Abbvie Humira Patents

The USPTO Patent Trial and Appeal Board (PTAB) denied institution of two Inter Partes Review challenges brought by Amgen, Inc. against two Humira patents covering stable formulations of anti-human Tumor Necrosis Factor alpha...more

1/19/2016 - Amgen Biosimilars BPCIA Inter Partes Review Proceedings Obviousness Patent Litigation Patent Trial and Appeal Board

PTAB Trial Standard Of Review Requires Affirmance Despite Contrary Evidence

In Merck & Cie v. Gnosis S.p.A., the Federal Circuit affirmed the decision of the USPTO Patent Trial and Appeal Board (PTAB) that held the challenged claims obvious in an Inter Partes Review (IPR) proceeding. Although the...more

1/15/2016 - Agency Deference Inter Partes Review Proceedings Merck Obviousness Patent Litigation Patent Trial and Appeal Board Standard of Review Substantial Evidence Standard

Higher PTAB Trial Fees On The Horizon

The USPTO has released proposed patent fee changes that include significant increases to PTAB trial fees. The proposed changes are summarized in the USPTO’s “Executive Summary” prepared for the Patent Public Advisory...more

1/7/2016 - Covered Business Method Proceedings Inter Partes Review Proceedings Patent Trial and Appeal Board Post-Grant Review Trial Fees USPTO

Federal Circuit Orders IPR Remand On Board's Treatment Of Evidence

In Ariosa Diagnostics v. Verinata Health, Inc., the Federal Circuit vacated and remanded two parallel final written decisions in favor of the Patent Owner, because it could not discern whether the Board had incorrectly...more

1/7/2016 - Expert Testimony Inter Partes Review Proceedings Patent Litigation Patent Trial and Appeal Board Remand Vacated

PTAB Institutes Kyle Bass Lialda Patent IPR

After filing over thirty petitions for Inter Partes Review of Orange Book-listed patents for various drugs, Kyle Bass and his Coalition for Affordable Drugs finally have made it over the first hurdle. The USPTO Patent Trial...more

10/13/2015 - ANDA FDA Approval Generic Drugs Hedge Funds Inter Partes Review Proceedings Likelihood of Success Obviousness Orange Book Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents Pharmaceutical Patents Prescription Drugs Real Party in Interest USPTO

PTAB Refuses To Sanction Kyle Bass

Many pharmaceutical companies have complained about the IPR petitions filed by Kyle Bass and the Coalition for Affordable Drugs against Orange Book-listed patents covering approved pharmaceutical products, but Celgene Corp....more

9/28/2015 - Abuse of Process America Invents Act Hedge Funds Innovation Act Inter Partes Review Proceedings Orange Book Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents Pharmaceutical Patents Sanctions

Board Boots Bass Tecfidera IPR on the Merits

On September 2, 2015, the USPTO Patent Trial and Appeal Board (PTAB) denied institution of another Inter Partes Review brought by Kyle Bass, the Coalition for Affordable Drugs, and other related entities. In denying the...more

9/8/2015 - Generic Drugs Hedge Funds Inter Partes Review Proceedings Obviousness Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents Pharmaceutical Patents Prescription Drugs Prior Art USPTO

PTAB Denies Institution of Kyle Bass's Ampyra Patent Challenge

The USPTO Patent Trial and Appeal Board (PTAB) has put an end to Kyle Bass’s Ampyra patent challenge, by denying institution of Inter Partes Review (IPR) proceedings. While many were hoping the PTAB would render a decision...more

8/26/2015 - Abuse of Process Generic Drugs Hedge Funds Inter Partes Review Proceedings Orange Book Patent Infringement Patent Litigation Patent Owner Preliminary Response Patent Trial and Appeal Board Patents Pharmaceutical Patents Prescription Drugs Prior Art Real Party in Interest USPTO

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 Sanofi-Aventis 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 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

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

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

Stricter Standing for Inter Partes Review?

Neither the statutes nor the regulations governing Inter Partes Review (IPR) require the party challenging the patent to have been charged with infringement, or even to establish any interest in practicing the claimed subject...more

4/15/2015 - Fund Managers Inter Partes Review Proceedings Orange Book Patent Infringement Patents Pharmaceutical Industry Pharmaceutical Patents Prescription Drugs Standing

Federal Circuit Affirms Use of Broadest Reasonable Interpretation of Claims in IPR Proceedings

In affirming the decision of the USPTO’s Patent Trial and Appeal Board (PTAB) in In re Cuozzo Speed Technologies, LLC, the Federal Circuit upheld the PTAB’s use of the “broadest reasonable interpretation” of the claims in...more

2/6/2015 - Cuozzo Speed Technologies Inter Partes Review Proceedings Jurisdiction Patent Trial and Appeal Board Patents Prior Art

Three Patent Issues to Watch in 2015

Well, 2014 was a busy year in patent law, and it wasn’t all good news for patent holders. The Supreme Court made 35 USC § 101 a significant hurdle to patenting inventions across a broad swath of technologies, gave more teeth...more

1/8/2015 - Broadest Reasonable Interpretation Standard CLS Bank v Alice Corp Inter Partes Review Proceedings Interim Guidance Limelight v Akamai Nautilus Inc. v. Biosig Instruments Patent Infringement Patents Post-Grant Review SCOTUS USPTO

Is Evidence of Obviousness Always Required?

In K/S HIMPP v. Hear-Wear Technologies, LLC, the Federal Circuit affirmed the decision of the Patent Trial and Appeal Board (PTAB) that upheld the decision of the Central Reexamination Unit Examiner that refused to hold...more

6/13/2014 - Inter Partes Review Proceedings Obviousness Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents USPTO

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