Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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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

Purdue OxyContin Patents Invalid Despite Stemming From Discovery Of Source Of Toxic Impurity

In Purdue Pharma L.P. v. Epic Pharma LLC, the Federal Circuit affirmed the district court decision holding four OxyContin patents invalid as obvious. In so doing, the court rejected Purdue’s arguments that its discovery of...more

2/5/2016 - ANDA Method Claims Mylan Pharmaceuticals Obviousness OxyContin Patent Invalidity Patent Litigation Pharmaceutical Patents Popular Teva Pharmaceuticals

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

Losing Competing Property Not A Teaching Away

In In re Urbanski, the Federal Circuit upheld the decision of the USPTO Patent Trial and Appeal Board (PTAB) finding the claims of Urbanski’s patent application obvious. Urbanski had argued that the cited references taught...more

1/13/2016 - Obviousness Patent Applications Patent Litigation Patent Trial and Appeal Board Prior Art

Obviousness Versus Obviousness-Type Double Patenting

In Prometheus Laboratories, Inc. v. Roxane Laboratories, Inc., the Federal Circuit affirmed the district court’s finding that Prometheus’ claims were invalid as obvious, but in so doing it cited its own precedent regarding...more

11/25/2015 - ANDA Obviousness OTDP Patent Litigation Patents Prometheus Roxane Laboratories

Morsa II: Admissions Enable Prior Art

In its 2013 decision in In re Morsa, the Federal Circuit vacated an anticipation rejection where “both the Board and the examiner failed to engage in a proper enablement analysis” to establish the enabling quality of the...more

10/28/2015 - Enablement Inquiries Examiners Obviousness Patent Applications Patent Litigation Patent Trial and Appeal Board Patents Prior Art USPTO

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

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

The Value Of Prophetic Examples

In Allergan, Inc. v. Sandoz, Inc., the Federal Circuit affirmed the district court decision that upheld the validity of the Allergan patents relating to Lumigan® 0.01% glaucoma eye drops against obviousness, written...more

8/13/2015 - Allergan Inc Allergan v Sandoz Enablement Inquiries Inherency Obviousness Patent Infringement Patent Invalidity Patent Litigation Patents Prior Art Written Descriptions

Lumigan Patents Upheld by Unexpected Results

In Allergan, Inc. v. Sandoz, Inc., the Federal Circuit affirmed the district court decision that upheld the validity of the Allergan patents relating to Lumigan® 0.01% glaucoma eye drops. This decision shows that it is still...more

8/13/2015 - Allergan Inc Allergan v Sandoz Enablement Inquiries Inherency Obviousness Patent Infringement Patent Invalidity Patent Litigation Patent Ownership Patents Pharmaceutical Industry Pharmaceutical Patents Prior Art Written Descriptions

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

Federal Circuit Says Secret Prior Art Is Prior Art for All Purposes

In Tyco Healthcare Group LP v. Ethicon Endo-Surgery, Inc., the Federal Circuit agreed with the district court that Ethicon’s prototype constituted prior art under 35 USC § 102(g) based on its earlier date of conception, but...more

12/12/2014 - Medical Devices Obviousness Patents Popular Prior Art Tyco

Federal Circuit Notes High Burden of Invoking Inherency for Obviousness

In Par Pharmaceutical Inc. v. Twi Pharmaceuticals, Inc., the Federal Circuit vacated and remanded the district court decision holding the Par claims at issue obvious. The district court decision rested in part on the doctrine...more

12/5/2014 - Obviousness Par Pharmaceutical Patent Litigation Patents Pharmaceutical Patents Prior Art

Federal Circuit Judges Disagree on Use of Post Filing Date Evidence of Nonobviousness

On October 20, 2014, the Federal Circuit issued an order denying the petition for rehearing or rehearing en banc filed in Bristol-Meyers Squibb Co. v. Teva Pharmaceuticals, USA, Inc. While the order itself may not be...more

10/22/2014 - Bristol-Myers Squibb Obviousness Patent Infringement Patent Litigation Patents Pharmaceutical Industry Pharmaceutical Patents Teva Pharmaceuticals

Humira Patent Invalid for Obviousness Type Double Patenting

In AbbVie Inc. v. Kennedy Institute of Rheumatology Trust, the Federal Circuit affirmed the district court’s finding that a second patent covering AbbVie’s Humira product is invalid under the doctrine of obviousness-type...more

8/26/2014 - Obviousness Patent Litigation Patents Pharmaceutical Industry

Federal Circuit Looks for a Different Kind of Unexpected Results in BMS v. Teva

In Bristol-Myers Squibb Co. v. Teva Pharmaceuticals USA, Inc., the Federal Circuit affirmed the district court’s finding that BMS’s Baraclude® patent is invalid as obvious. In so doing, the court gave little weight to...more

7/3/2014 - ANDA Bristol-Myers Squibb Obviousness Patent Litigation Patents Pharmaceutical Industry Pharmaceutical Patents Prescription Drugs Teva Pharmaceuticals

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

Federal Circuit Expands Doctrine of Obviousness Type Double Patenting

Can a later-granted patent render an earlier-granted patent invalid for obviousness-type double patenting? In Gilead Sciences, Inc. v. Natco Pharma Limited, the Federal Circuit held that it can. This decision could have...more

4/29/2014 - Gilead Sciences Obviousness Patent Litigation Patents

Patent Reform: The Leahy Patent Transparency and Improvements Act

Now that the Goodlatte Innovation Act has passed the House, its provisions likely will be reconciled with the Patent Transparency and Improvements Act (S. 1720) that was introduced in the Senate by Senator Leahy (D-Vt.) on...more

12/17/2013 - Disclosure Requirements Double Derivative Claims First-to-File Innovation Act Inventors Obviousness Patent Reform Patents

Federal Circuit Invalidates Galderma Differin Patents

In Galderma Laboratories v. Tolmar, Inc., the Federal Circuit reversed the district court’s findings that the Orange Book-listed patents for Galderma’s Differin® 0.3% gel product were not invalid as obvious. In so doing, the...more

12/12/2013 - ANDA Obviousness Patents Pharmaceutical Industry Prior Art

Federal Circuit Reverses Board Rejections That Strayed From Claim Construction

In the non-precedential decision in In re Eaton, the Federal Circuit reversed the USPTO Board decision affirming rejections of anticipation and obviousness. The court found that the Board decision strayed from its own claim...more

12/2/2013 - Claim Construction Obviousness Patent Litigation Patents USPTO

Goodlatte Proposes an Obviousness Type Double Patenting Statute

One of the provisions of the Innovation Act introduced by Congressman Goodlatte (R-VA) on October 23, 2014, purports to codify the doctrine of obviousness-type double patenting for applications and patents examined under the...more

11/6/2013 - First-to-File First-to-Invent Innovation Act Obviousness Patent Reform Patents Prior Art

Federal Circuit Vacates PTAB Decision Invalidating Rambus Patent

In Rambus, Inc. v. Rea, the Federal Circuit found several legal and procedural errors in the decision of the USPTO Patent Trial and Appeal Board (PTAB) that invalidated certain claims of the Rambus patent as obvious. While...more

10/4/2013 - Evidence Obviousness Patent Trial and Appeal Board Patents USPTO

Federal Circuit Finds Taclonex Patent Not Obvious, Reverses USPTO Decision

In Leo Pharmaceutical Products, Lt. v. Rae, the Federal Circuit issued a rare decision reversing an obviousness determination by the USPTO Patent Trial and Appeal Board (PTAB)....more

8/21/2013 - Obviousness Patents Pharmaceutical Industry Pharmaceutical Patents Prior Art USPTO

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