Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Federal Circuit Invalidates Myriad Primer and Method Claims as Lacking Subject Matter Eligibility

In a case styled as In re BRCA1- and BRCA2-Based Hereditary Cancer Test Patent Litigation (also known as Myriad v. Ambry), the Federal Circuit held four of Myriad’s “primer” claims and two of Myriad’s detection method claims...more

12/19/2014 - DNA Genetic Materials Guidance Update Myriad v Ambry Patent Litigation Patent-Eligible Subject Matter Patents Section 101 USTPO

Sequenom Deal May Avoid Federal Circuit Decision

Less than a month after their case was argued at the Federal Circuit, Illumina Inc. and Sequenom Inc. have announced a deal to settle their patent infringement litigation. While I haven’t seen an order dismissing the case,...more

12/16/2014 - Patent Infringement Patent Litigation Patents Pharmaceutical Patents

Federal Circuit Finds No Biosimilars Application Means No Case or Controversy for Sandoz

In Sandoz Inc. v. Amgen Inc., the Federal Circuit upheld the district court decision dismissing Sandoz’s declaratory judgment action for lack of jurisdiction. Although this may be the first Federal Circuit decision relating...more

12/9/2014 - Allergan v Sandoz Biosimilars BPCIA Patent Infringement Patent Litigation Patents Pharmaceutical Patents

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

Third Time Is the Charm for WildTangent Challenge of Patent Eligibility of Ultramercial Patent

In its third opinion reviewing the same district court decision, the Federal Circuit this time affirmed the district court’s grant of WildTangent’s motion to dismiss Ultramercial’s patent infringement complaint because the...more

11/18/2014 - CLS Bank v Alice Corp Copyright Patent Infringement Patent Litigation Patent-Eligible Subject Matter Patent-in-Suit Patents Section 101 Software

Federal Circuit Looks for Inventive Concept in Sequenom Patent

On November 7, 2014, the Federal Circuit heard oral arguments in Aria Diagnostics, Inc. v. Sequenom, Inc., where Sequenom is appealing the district court’s summary judgment of invalidity under 35 USC § 101. The active...more

11/11/2014 - Inventive Concept Test Mayo v. Prometheus Patent Infringement Patent Litigation Patents Sequenom

District Court Finds Genetic Technologies Patent Invalid Under 101 on Motion to Dismiss

Judge Stark of the U.S. District Court for the District of Delaware granted defendants’ motion to dismiss Genetic Technologies, Ltd.’s patent infringement suit with regard to claim 1 of U.S. Patent 5,612,179 on the basis that...more

11/7/2014 - Genetic Materials Genetic Technologies Ltd. Motion to Dismiss Patent Infringement Patent Litigation Patent-Eligible Subject Matter Patents Section 101

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 Pharmaceutical Patents Teva Pharmaceuticals

Federal Circuit Hears Arguments in Other Myriad Gene Patents Case

On October 6, 2014, the Federal Circuit heard oral arguments in a case involving the claims of the Myriad gene patents that were not invalidated by the Supreme Court’s 2013 decision. The Federal Circuit is reviewing the...more

10/8/2014 - DNA Myriad v Ambry Patent Litigation Patent-Eligible Subject Matter Patents Preliminary Injunctions

Federal Circuit Upholds Inequitable Conduct Post Therasense For Withheld Information

In American Calcar, Inc. v. American Honda Motor Co., the Federal Circuit upheld the district court’s finding that three Calcar patents are unenforceable due to inequitable conduct. Both courts reached this decision of...more

10/3/2014 - Auto Manufacturers Automotive Industry Honda Inequitable Conduct Patent Litigation Patents USPTO

Federal Circuit Applies "Searching Review" of Stay Pending CBM Proceeding

In Benefit Funding Systems, LLC v. Advance America Cash Advance Centers, Inc., the Federal Circuit upheld the district court’s decision to stay patent infringement litigation while the USPTO Patent Trial and Appeal Board...more

9/30/2014 - America Invents Act Covered Business Method Proceedings Order to Stay Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents USPTO

USPTO Promotes Patent Litigation Toolkit

If you subscribe to USPTO email updates like I do, then you probably received an email recently announcing that the “USPTO Launches Updated Patent Litigation Toolkit and Hosts Free Webinar about Toolkit Resources.” When one...more

9/24/2014 - Patent Litigation Patents USPTO

Court Finds Patent Indefiniteness In Unobtrusive Claims

In Interval Licensing LLC v. AOL, Inc., the Federal Circuit applied the test for patent indefiniteness set forth in the recent Supreme Court decision in Nautilus, Inc. v. Biosig Instruments, and found that claims reciting an...more

9/16/2014 - AOL Indefiniteness Nautilus Inc. v. Biosig Instruments Patent Litigation Patents

Federal Circuit Finds Apotex ANDAs Do Not Infringe Lysteda Patents

In two decisions issued under the same name (Ferring B.V. v. Watson Laboratories, Inc.), the Federal Circuit upheld the validity of the Orange Book-listed patents for Lysteda®, but found that they were not infringed by either...more

9/3/2014 - ANDA Patent Infringement Patent Litigation Patents Pharmaceutical Pharmaceutical Patents Prescription Drugs

Federal Circuit Upholds Validity of Lysteda Patents

In two decisions issued under the same name (Ferring B.V. v. Watson Laboratories, Inc.), the Federal Circuit upheld the validity of the Orange Book-listed patents for Lysteda®, but found that they were not infringed by either...more

8/29/2014 - ANDA Patent Infringement Patent Litigation Patents Pharmaceutical Patents Prescription Drugs

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

Federal Circuit Upholds Inequitable Conduct Defense Against Apotex Patent

In Apotex Inc. v. UCB, Inc., the Federal Circuit upheld the district court’s finding that Apotex’s patent is unenforceable due to inequitable conduct. While affirming on the ground of “but-for materiality,” the Federal...more

8/19/2014 - Patent Infringement Patent Litigation Patents

Federal Circuit Holds That Even Functional Claims Require Structural Fence Posts

In AbbVie Deutschland Gmbh v. Janssen Biotech, Inc., the Federal Circuit affirmed the district court decision that found AbbVie’s patents directed to anti-IL-12 antibodies invalid for lack of adequate written description. As...more

7/14/2014 - Biotechnology Functionality Patent Infringement Patent Litigation Patents Pharmaceutical Pharmaceutical Patents

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 Pharmaceutical Patents Prescription Drugs Teva Pharmaceuticals

How the Supreme Court Decision in Alice Corp. v. CLS Bank Undermines the USPTO Subject Matter Eligibility Guidance

On June 19, 2014, the Supreme Court issued its decision in Alice Corp. v. CLS Bank International, finding that patents directed to “a computer-implemented scheme for mitigating ‘settlement risk’” were invalid as being drawn...more

6/25/2014 - Alice Corporation CLS Bank CLS Bank v Alice Corp Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Patents Risk Mitigation SCOTUS Software

Supreme Court: Generic Computer Implementation Does Not Render Abstract Ideas Patentable

On June 19, 2014, the Supreme Court issued its opinion in Alice Corp. v. CLS Bank Int’l, No. 13-298, which was previously discussed. In a unanimous opinion by Justice Thomas, the Court held, consistent with its precedent,...more

6/20/2014 - Alice Corporation CLS Bank CLS Bank v Alice Corp Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Patents Popular Risk Mitigation Software

Federal Circuit Says Mistaken Belief Required for Reissue Error

In In re Dinsmore, the Federal Circuit held that the reissue process could not be used to correct an alleged defect in a terminal disclaimer between patents that were not commonly owned, because there had been no “mistaken...more

6/17/2014 - Patent Litigation Patents Reissue Patents Terminal Disclaimer 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

Supreme Court Adopts Reasonable Certainty Test for Definiteness

On June 2, 2014, the Supreme Court issued a unanimous decision in Nautilus, Inc. v. Biosig Instruments, Inc., rejecting the Federal Circuit’s “insolubly ambiguous” test for patent claim indefiniteness under 35 USC § 112, and...more

6/11/2014 - Definiteness Indefiniteness Nautilus Inc. v. Biosig Instruments Patent Infringement Patent Litigation Patents Reasonable Certainty Standard SCOTUS

Federal Circuit Finds Consumer Watchdog Lacks Standing to Appeal Reexamination Decision Upholding WARF Stem Cell Patent

In Consumer Watchdog v. Wisconsin Alumni Research Foundation, the Federal Circuit held that an inter partes reexamination requester must establish an injury in fact sufficient to confer Article III standing in order to appeal...more

6/6/2014 - America Invents Act Appeals Inter Partes Review Proceedings Patent Litigation Patent Trial and Appeal Board Patents Post-Grant Review Stem cells WARF

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