Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Court Cites Objects of Invention in Claim Construction

Pacing Technologies, LLC v. Garmin International, Inc. is one of those Federal Circuit decisions that may send patent practitioners running to their files to double-check the phrasing used in their patent applications. Not...more

2/25/2015 - Claim Construction Garmin International Patent Litigation Patents

Concerns About the Goodlatte Innovation Act

On February 5, 2015, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) introduced the Innovation Act, which is touted as “address[ing] the ever increasing problem of abusive patent litigation.” The bill was introduced...more

2/11/2015 - Innovation Act Patent Litigation Patent Reform Patents Pending Legislation

Why Did the Supreme Court GVR the Shire Lialda Case?

On January 26, 2015, the Supreme Court granted certiorari, vacated, and remanded Shire Development LLC v. Watson Pharmaceuticals, Inc., to the Federal Circuit “for further consideration in light of Teva Pharmaceuticals USA,...more

1/30/2015 - Certiorari Claim Construction Clear Error Standard De Novo Standard of Review Federal Rules of Civil Procedure Patent Litigation Patents Pharmaceutical Pharmaceutical Manufacturers Pharmaceutical Patents Remand SCOTUS Shire Development v Watson Teva v Sandoz Vacated

Validity of Sequenom Patent Still to Be Decided

Although Sequenom has settled its dispute over U.S. Patent 6,258,540 with some parties, its case against Ariosa Diagnostics, Inc. remains active. Thus, we all should be waiting with bated breath to see whether the Federal...more

1/28/2015 - DNA Myriad Patent Litigation Patent-Eligible Subject Matter Patents Sequenom

Supreme Court Calls for Some Deference in Claim Construction Standard of Review

On January 20, 2015, the Supreme Court issued its decision in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., finding that the Federal Rules of Civil Procedure call for some deference in the claim construction standard of...more

1/23/2015 - Claim Construction Clear Error Standard De Novo Standard of Review Federal Rules of Civil Procedure Patent Litigation Patents Pharmaceutical Pharmaceutical Manufacturers Pharmaceutical Patents SCOTUS Teva v Sandoz

Can Any DNA Claims Still Be Patented?

In a decision issued December 17, 2014, in In Re BRCA1- And BRCA2-Based Hereditary Cancer Test Patent Litigation (Myriad II), the Federal Circuit invalidated Myriad’s primer claims and detection method claims under 35 USC §...more

1/22/2015 - DNA Genetic Materials Interim Guidance Myriad Patent Litigation Patent-Eligible Subject Matter Patents Pathology v Myriad SCOTUS USPTO

Federal Circuit Finds "Classic" Reissue Error

In Fleming v. Escort Inc., the Federal Circuit noted that the error on which Fleming’s reissue patents were based was a “classic” type of error justifying reissue: the inventor’s failure to appreciate the full scope of his...more

1/8/2015 - Inventors Patent Litigation Patents Reissue Patents

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

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