Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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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

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

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

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

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

Court Invalidates Improper Multiple Dependent Claims

In Trustees of the University of Pennsylvania v. Eli Lilly and Co., the U.S. District Court for the Eastern District of Pennsylvania refused to correct improper multiple dependent claims and instead held them invalid under 35...more

6/30/2016 - Dismissals Mistake Noninfringement Patent Invalidity Patent Litigation Patents

Supreme Court Deals Blow To Diagnostic Method Patents, Denies Cert In Sequenom

“If you can’t say something nice, don’t say anything at all” can be good words to live by, but in the context of the Supreme Court’s denial of certiorari in Sequenom, the silence is deafening–and could have a chilling impact...more

6/29/2016 - Ariosa Diagnostic Method Patent Litigation Patent-Eligible Subject Matter Personalized Medicine Petition for Writ of Certiorari Pharmaceutical Patents Section 101 Sequenom USPTO

Supreme Court Declines to Review Sequenom Ruling

The U.S. Supreme Court has denied certiorari in Sequenom, Inc. v. Ariosa Diagnostics, Inc. (No. 15-1182), declining to review the Federal Circuit’s June 12, 2015, decision that certain methods of detecting paternally...more

6/28/2016 - Ariosa CLS Bank v Alice Corp Diagnostic Method Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Petition for Writ of Certiorari Section 101 Sequenom USPTO

CAFC Upholds Same Day Continuation Applications

The Federal Circuit decided not to disturb the “longstanding administrative construction” of 35 USC § 120 that permits the filing of a continuation application on the same day its parent application grants as a patent. The...more

6/23/2016 - CAFC Continuous Applications HTC Patent Applications Patent Litigation Patents Same-Day Continuations USPTO

Supreme Court Defers Certiorari Decision In Amgen Sandoz Biosimilar Patent Dance Dispute

On June 20, 2016, instead of deciding whether to grant certiorari in the biosimilar patent dance dispute between Amgen and Sandoz, the Supreme Court invited the Solicitor General “to file a brief in this case expressing the...more

6/21/2016 - Amgen Biosimilars BPCIA Patent Dance Patent Litigation Petition for Writ of Certiorari Pharmaceutical Patents Sandoz Sandoz v Amgen SCOTUS Solicitor General

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

Supreme Court Adopts More Flexible Standard For Enhanced Damages For Willful Infringement

In Halo Electronics, Inc. v. Pulse Electronics, Inc., the Supreme Court rejected the Federal Circuit’s two-part Seagate test for awarding enhanced damages under 35 USC § 284, finding that both the substantive requirement for...more

6/15/2016 - 35 U.S.C. § 284 Enhanced Damages Halo v Pulse Judicial Discretion Octane Fitness v. ICON Patent Infringement Patent Litigation Patents Preponderance of the Evidence SCOTUS Seagate Willful Infringement

PTAB Institutes Post Grant Review Against Chemical Process Patent

The USPTO Patent Trial and Appeal Board has instituted Post Grant Review (PGR) proceedings against a patent directed to a process for treating contaminated media. The petition for PGR challenged that patent on written...more

6/8/2016 - Patent Litigation Patent Trial and Appeal Board Patents Post-Grant Review Written Descriptions

On Sale Bar Invalidates Safyral, Beyaz Folate Patent

In Merck & CIE v. Watson Laboratories, Inc., the Federal Circuit found communications between Merck and a potential joint venture partner amounted to a commercial offer to sell that invalidated the Orange Book-listed folate...more

5/31/2016 - America Invents Act ANDA Confidentiality Agreements Generic Drugs Joint Venture Merck Non-Compete Agreements On-Sale Bar Patent Invalidity Patent Litigation Pharmaceutical Patents Reversal Watson Pharmaceuticals

CAFC Affirms Finacea Gel Infringement Under Doctrine of Equivalents

In Intendis GmbH v. Glenmark Pharmaceuticals Inc., USA, the Federal Circuit affirmed the district court decision that found infringement under the doctrine of equivalents. This case shows that the doctrine of equivalents...more

5/24/2016 - ANDA CAFC De Novo Standard of Review Doctrine of Equivalents Estoppel FDA Approval Generic Drugs Orange Book Patent Infringement Patent Litigation Pharmaceutical Patents Prior Art

Amgen And Sandoz Do The Biosimilar Patent Dance Over Neulasta

Amgen Inc. has filed a complaint under the Biologics Price Competition and Innovation Act (BPCIA), asserting that a biosimilar application filed by Sandoz Inc. seeking approval of a biosimilar version of Neulasta® infringes...more

5/17/2016 - Amgen Apotex Biosimilars BPCIA FDA Patent Dance Patent Infringement Patent Litigation Pharmaceutical Industry Sandoz Sandoz v Amgen

New USPTO Guidance On Patent Eligibility Of Diagnostic Methods

The patent eligibility examples published by the USPTO on May 5, 2016 include two new examples relating to diagnostic methods and two new examples relating to “nature-based” products. This article will consider the diagnostic...more

5/10/2016 - Diagnostic Method Mayo v. Prometheus Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Patents Sequenom USPTO

District Court Applies Mayo To Treatment Claims But Denies Motion To Dismiss BMS Keytruda Litigation

The U.S. District Court for the District of Delaware accepted Merck’s arguments that method of treatment patents asserted by BMS against its Keytruda product “touch[] upon a natural phenomenon” such that they should be...more

5/5/2016 - Bristol-Myers Squibb CLS Bank v Alice Corp Federal Rule 12(b)(6) Mayo v. Prometheus Merck Motion to Dismiss Patent Infringement Patent Litigation Patent-Eligible Subject Matter Presumption of Validity SCOTUS Treatment Method Patents

Having A Bad Hair Day? The Federal Circuit Agrees That Method Of Cutting Hair Is Invalid Under 101

While I do not usually write about non-precedential decisions, In re: Brown caught my eye as an interesting patent eligibility case. It does not relate to diagnostics or computer programs, but rather to the art of cutting...more

5/2/2016 - Abstract Ideas CLS Bank v Alice Corp Mayo v. Prometheus Patent Applications Patent Invalidity Patent Litigation Patent-Eligible Subject Matter

Will The Celsis Appeal Put An End To 101 Rejections Of Laboratory Method Claims?

On April 5, 2016, the Federal Circuit heard oral arguments in Rapid Litigation Mgmt. Ltd. v. CellzDirect Inc., where the U.S. District Court for the Northern District of Illinois held invalid claims directed to a “method of...more

4/29/2016 - Appeals CLS Bank v Alice Corp Mayo v. Prometheus Method Claims Patent Invalidity Patent Litigation Patent-Eligible Subject Matter SCOTUS 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

Court Can't Review Policy Behind Patent Term Adjustment Statute

In Singhal v. Lee, the U.S. District Court for the Eastern District of Virginia dismissed a complaint that challenged the Patent Term Adjustment (PTA) awarded to two patents, because the complaint failed to state a claim upon...more

4/14/2016 - Novartis Patent Litigation Patent Term Adjustment Patent Terms Patents Request for Continued Examination USPTO

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