Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Swearing Behind A Reference With Reasonably Continuous Diligence

In Perfect Surgical Techniques, Inc. v. Olympus America, Inc., the Federal Circuit vacated and remanded a USPTO Patent Trial and Appeal Board decision in an Inter Partes Review proceeding, finding that the PTAB imposed too...more

11/23/2016 - America Invents Act Appeals Due Diligence Evidence Inter Partes Review (IPR) Proceeding Patent Trial and Appeal Board Patents Remand Rule-of-Reason Analysis Section 102 USPTO Vacated

USPTO Examination Time Goals -- How Much Time Should Examiners Have To Examine A Patent Application?

As part of its ongoing efforts to improve patent quality, the USPTO is reevaluating its examination time goals and seeking public feedback on how much time examiners should have to examine a patent application. Examination...more

11/15/2016 - Administrative Proceedings Patent Examination Time Patent Examinations Patents Popular Public Comment USPTO

USPTO Again Proposes To Revise Duty Of Disclosure In View Of Therasense

More than five years after the Federal Circuit’s en banc decision in Therasense and its first proposed rulemaking under that decision, the USPTO has issued a new proposed rulemaking to adapt its duty of disclosure rule (37...more

11/4/2016 - 37 CFR § 1.56 Duty to Disclose Federal Register Inequitable Conduct Materiality Patent Applications Popular Prior Art Therasense USPTO

District Court Denies Extra Patent Term Adjustment When National Stage Entry Date Falls On A Holiday

Some patent term adjustment (PTA) cases have broad impact–like Wyeth v. Kappos and Novartis v. Lee–but Acetelion Pharmaceuticals, Inc. v. Lee addresses a more esoteric issue: when does the 14-month clock start to run in a...more

11/3/2016 - America Invents Act National Stage Entry Date Patent Examinations Patent Filings Patent Term Adjustment Patents USPTO

Biogen TYSABRI Patents Spared Inter Partes Review

The USPTO Patent Trial and Appeals Board (PTAB) declined to institute Inter Partes Review (IPR) proceedings against three Biogen Idec TYSABRI patents. The IPR petitions were filed by Swiss Pharma International, and asserted...more

11/1/2016 - Biogen Idec Inter Partes Review (IPR) Proceeding Patent Trial and Appeal Board Patents Pharmaceutical Patents Popular USPTO

Higher US Patent Fees On The Horizon

The USPTO has published a proposed fee schedule for patent fees likely to take effect October 1, 2017–the start of the USPTO’s next fiscal year. The proposed fee schedule makes “slight” changes to many fees, and more...more

10/20/2016 - America Invents Act Filing Fees Patent Fees Patent Public Advisory Committee (PPAC) Patents Public Comment USPTO

PTAB Upholds Lialda Patent Over Kyle Bass IPR Challenge

The USPTO Patent Trial and Appeal Board (PTAB) has issued a final written decision upholding Shire’s Lialda® patent over the Inter Partes Review (IPR) challenge brought by Kyle Bass and his Coalition for Affordable Drugs. The...more

10/20/2016 - Burden of Persuasion Inter Partes Review (IPR) Proceeding Obviousness Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents Pharmaceutical Patents Prior Art

Judge Grants Gilead Motion To Invalidate Remicade Patent For Obviousness-Type Double Patenting

The FDA approved Inflectra–Celltrion’s biosimilar version of Janssen’s Remicade® (infliximab) product–in April 2016, but according to Pfizer’s press release it’s commercial launch still “depend[s] on a number of factors”...more

10/7/2016 - Biosimilars FDA Obviousness Patent Litigation Patents

Inherent Disclosure Supports Priority Claim

In Yeda Research and Development Co. v. Abbott GmbH and Co., the Federal Circuit invoked the doctrine of inherent disclosure to uphold a priority claim to a German priority application that only partly described the claimed...more

10/4/2016 - Inherent Disclosure Doctrine Patent Applications Patent Litigation Patents Priority Patent Claims Written Descriptions

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 (IPR) Proceeding 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 (IPR) Proceeding 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

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