Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Examination Delay Earns Patent Term Adjustment Only In One Application

In Mohsenzadeh v. Lee, the Federal Circuit affirmed the district court’s decision that the USPTO’s delay in issuing a Restriction Requirement in a parent application does not earn Patent Term Adjustment (PTA) for the ensuing...more

7/3/2015 - Delays Divisional Applications Patent Applications Patent Litigation Patent Term Adjustment Patents Summary Judgment USPTO

Federal Circuit Strikes Final Blow to Celebrex Patent

In 2008, the Federal Circuit determined that claims 1-4 and 11-17 of U.S. Patent No. 5,760,068 were invalid for obviousness-type double patenting (OTDP) over a related parent patent, in part because the ‘068 patent was filed...more

6/27/2015 - Divisional Applications Double Patent Drug Manufacturers OTDP Patent Applications Patent Invalidity Patent Litigation Patents Pfizer Pharmaceutical Manufacturers Pharmaceutical Patents Reissue Patents Safe Harbors USPTO

USPTO Pilots Expedited Patent Appeal Program But at What Price?

In a June 15, 2015 Federal Register Notice, the USPTO announced the Expedited Patent Appeal Pilot program, which will run until 2,000 ex parte patent appeals are expedited under the program, or until June 20, 2016, whichever...more

6/19/2015 - Federal Register Inventors Patent Applications Patent Litigation Patent Term Adjustment Patent Trial and Appeal Board Patents Pharmaceutical Patents Request for Continued Examination USPTO

Federal Circuit Holds Sequenom Diagnostic Method Patent Invalid Under 101

On Friday, June 12, 2015, the Federal Circuit issued its decision in Ariosa Diagnostics, Inc. v. Sequenom, Inc., affirming the district court's finding that Sequenom’s claims are invalid under 35 USC § 101. The court's...more

6/15/2015 - Diagnostic Method Inventions Mayo v. Prometheus Myriad Patent Applications Patent Infringement Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Patents Personalized Medicine Preemption Preliminary Injunctions Sequenom Summary Judgment

No Collateral Challenge of Patent Application Revival

In Exela Pharma Sciences, LLC v. Lee, the Federal Circuit held that the USPTO’s decision to revive a patent application “is not subject to third party collateral challenge” under the Administrative Procedures Act (APA). In so...more

4/1/2015 - Administrative Procedure Act Patent Applications Patent Litigation Patents USPTO

How Long Is Too Long (or Too Short) for Patent Application Pendency?

The USPTO is requesting input on the “optimal” targets for its patent application pendency metrics. The USPTO’s current targets are 10 months to a first Office Action and 20 months to grant or abandonment. The USPTO wants to...more

7/21/2014 - Patent Applications Public Comment USPTO

USPTO Proposes Revised Patent Term Adjustment Rules for RCEs Under Novartis

The USPTO has published proposed rules for calculating Patent Term Adjustment (PTA) for applications in which a Request for Continued Examination (RCE) has been filed, after the Federal Circuit held in Novartis v. Lee that...more

6/20/2014 - Novartis Patent Applications Patent Term Adjustment Proposed Regulation Public Comment Request for Continued Examination USPTO

Federal Circuit Keeps Burden of Patent Clarity on Applicants on Issues of Patent Indefiniteness

In In re Packard, the Federal Circuit affirmed the USPTO Patent Trial and Appeal Board (PTAB) decision upholding the rejection of Packard’s claims for indefiniteness. The per curiam decision approaches the issue from the...more

5/8/2014 - Indefiniteness Patent Applications Patent Litigation Patent Trial and Appeal Board Patents USPTO

The USPTO Glossary Pilot Program

In a Federal Register Notice published March 27, 2014, the USPTO announced a Glossary Pilot Program that will offer expedited examination to new patent applications in certain technology areas that include a glossary of terms...more

4/3/2014 - Patent Applications USPTO

Do These Sequence Analysis Method Patents Satisfy Section 101?

According to an article on Law360, Bristol-Myers Squibb Co. is challenging the validity of two Genetic Technologies Ltd. patents on the basis that the claimed intron sequence analysis methods recite natural phenomena that do...more

2/7/2014 - AMP v Myriad Covered Business Method Patents Mayo v. Prometheus Myriad Patent Applications Patents SCOTUS

Federal Circuit Holds Computer-Implemented Method Claims Invalid Under Section 101

Although SmartGene, Inc. v. Advanced Biological Laboratories, SA is a non-precedential Federal Circuit decision, it could be interesting for that very reason, if it is a reflection of what the court sees as settled aspects of...more

2/5/2014 - Computer-Related Inventions Patent Applications Patent Litigation Patent-Eligible Subject Matter Patents

Federal Circuit Finds Hole in “This” Priority Claim

In Medtronic CoreValve, LLC v. Edwards Lifesciences Corp., the Federal Circuit affirmed the district court’s finding that the patent at issue was invalid because of a defective priority claim. While practitioners may cringe...more

1/30/2014 - Medical Devices Medtronics Patent Applications Patent Litigation Priority Disputes USPTO

USPTO Proposes Real Party In Interest Patent Rules

A year after its “Roundtable on Proposed Requirements for Recordation of Real Party-in-Interest Information Throughout Application Pendency and Patent Term,” and six months after the White House Task Force on High-Tech Patent...more

1/28/2014 - Patent Applications Patent Ownership Patent Reform Patents USPTO

Patent Law Treaty Sets Minimum Two Month Response Periods

Since the Patent Law Treaty Implementation Act took effect on December 18, 2013, applicants may have noticed that they are being given a longer period of time to respond to certain Office Actions, such as Restriction...more

1/21/2014 - Deadlines Patent Applications Patent Law Treaty Patents USPTO

Can You Wait to Take Advantage of USPTO Fees Decreasing January 1, 2014?

Certain USPTO fees are set to decrease on January 1, 2014, including issue fees and the publication fees for utility applications. Also, as of January 1, 2014, certain PCT International Stage fees will have Small Entity and...more

10/24/2013 - Assignments Fees Patent Applications USPTO

It’s Back To The Future For The EPO Divisional Application Deadline Rules

The EPO has announced that it is changing the EPO divisional application deadline rules to eliminate the current 24-month deadline for filing divisional applications, and permit the filing of a divisional application as long...more

10/22/2013 - Deadlines Divisional Applications EPO Patent Applications Patents

A Look at the USPTO Backlog Statistics

As the USPTO fiscal year comes to an end on September 30, I thought this would be a good time to review the USPTO backlog statistics. The currently available data reflects the backlogs as of the start of August 2013, and...more

9/20/2013 - Ex Partes Reexamination Patent Applications Patents USPTO

Federal Circuit Holds Patentee to Functional Claim Language

In Bayer Cropscience AG v. Dow AgroSciences LLC, the Federal Circuit upheld the district court’s claim construction that interpreted “2,4-D monooxygenase” in accordance with its established scientific meaning, even though...more

9/6/2013 - Claim Construction Functionality Infringement Patent Applications Patent Litigation Patents

Act Soon to Obtain Additional Patent Term Adjustment for U.S. National Stage Applications

The AIA Technical Corrections Act made several changes to the Patent Term Adjustment (PTA) statute, including one that could mean additional Patent Term Adjustment for U.S. national stage applications....more

8/1/2013 - Patent Applications Patent Term Adjustment Patents USPTO

Federal Circuit Finds No Written Description Support For Novozymes Amylase Patent

In Novozymes A/S v. DuPont Nutrition Biosciences APS, the Federal Circuit determined that the Novozymes amylase patent at issue did not satisfy the written description requirement of 35 USC § 112, because the disclosure did...more

7/25/2013 - Biotechnology Patent Applications Patent Infringement Patent Litigation Patents Pharmaceutical Written Descriptions

Congressman Goodlatte Proposes to Codify Obviousness-Type Double Patenting

As I wrote previously, Congressman Goodlatte (R-Va.) released “a discussion draft” of patent reform legislation on May 23, 2013....more

6/6/2013 - OTDP Patent Applications Patent Reform Patent Term Adjustment Patents USPTO

U.S. and USPTO Move to Implement the Patent Law Treaty of 2000

While U.S. patent practitioners have been focusing on the changes to U.S. patent law embodied in the Leahy-Smith America Invents Act (AIA), Congress has taken additional steps to harmonize and streamline patent application...more

5/29/2013 - America Invents Act Filing Requirements Patent Applications Patent Law Treaty Patent Reform Patent Term Adjustment Patents USPTO

USPTO Launches New After Final Consideration Pilot Program to Reduce Requests for Continued Examination (RCEs)

In a Federal Register Notice published on May 17, 2013, the USPTO announced After Final Consideration Pilot Program 2.0 (AFCP 2.0) as part of its ongoing efforts to “reduce pendency by reducing the number of Requests for...more

5/21/2013 - Patent Applications Patent Examinations Patents Request for Continued Examination USPTO

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

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

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