Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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CAFC Says Functional Claim Language Does Not Create Divided Infringement

In LifeNet Health v. LifeCell Corporation, one of the many issues the Federal Circuit decided was that functional claim language did not create a divided infringement situation, even though an independent actor could impact...more

9/26/2016 - Appeals Divided Infringement Functionality Indefiniteness JMOL Judgment As A Matter Of Law Jury Verdicts Patent Infringement Patents Written Descriptions

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

Apotex Biosimilar Cleared Of Infringement But Pre-Marketing Notice Still Required

In what may be the first decision on the merits in a patent infringement suit brought under the Biologics Price Competition and Innovation Act (BPCIA), the U.S. District Court for Southern District of Florida has found that...more

9/20/2016 - Apotex Biosimilars BPCIA Patent Dance Patent Infringement Patents Pharmaceutical Patents

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

USPTO Launches Patents 4 Patients

To support the National Cancer Moonshot initiative, the USPTO has launched the Patents 4 Patients program, also known as the Cancer Immunotherapy Pilot Program. Under this program, applicants can obtain expedited examination...more

8/3/2016 - National Cancer Moonshot Patent Applications Patent Prosecution Patents Request for Continued Examination USPTO USPTO Pilot Program

The Promise And Pitfalls Of 3D Printing

3D printing offers great promise for innovation and manufacturing, but this tool has expanded the scope of patented products that can be easily and cheaply copied, and may make it harder to identify and prosecute infringers....more

8/1/2016 - 3D Printing Bilski CLS Bank v Alice Corp Contributory Infringement FDA Induced Infringement Intellectual Property Protection Manufacturers Medical Devices Patent Infringement Patents Pharmaceutical Industry Professional Conferences USPTO

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)

New USPTO P3 Program Offers Applicant Participation In After Final Conference

The USPTO has launched a new after final program available starting July 11, 2016. The Post-Prosecution Pilot Program (P3) combines features of the After Final Consideration Pilot 2.0 (AFCP 2.0) and Pre-Appeal Brief...more

7/12/2016 - Comment Period Final Action Notice of Appeal Patent Applications Patents Request for Continued Examination USPTO USPTO Pilot Program

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

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 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

USPTO 101 Guidance: Microneedles Versus Prosthetic Devices

When I first wrote about the new natural products Subject Matter Eligibility Examples issued by the USPTO on May 4, 2016, I noted a puzzling difference between the treatment of a claim reciting a vaccine coated on a...more

5/20/2016 - Guidance Update Medical Devices Patent-Eligible Subject Matter Patents Section 101 USPTO

New USPTO Guidance On Patent Eligibility Of Natural Products

The new USPTO patent eligibility examples include two examples for “natural products” based inventions which appear to be consistent with the examples provided in the December 2014 set of patent eligibility examples. Although...more

5/16/2016 - CLS Bank v Alice Corp Guidance Update Mayo v. Prometheus Natural Products Patent-Eligible Subject Matter Patents USPTO

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

USPTO Issues New Patent Eligibility Examples

The USPTO has issued new patent eligibility examples, including several examples relating to diagnostic methods and “nature-based” products. Surprisingly, most of the claims are said to satisfy 35 USC § 101. The USPTO also...more

5/10/2016 - Diagnostic Method Examiners New Guidance Patent Applications Patent-Eligible Subject Matter Patents USPTO

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

Patent Term Adjustment In South Korea

According to this bulletin from Lee International IP & Law Group in South Korea, Korean patents filed on or after March 2012 may be entitled to Patent Term Adjustment if they issued more than 4 years after the filing date and...more

3/18/2016 - Delays Fees KIPO Patent Applications Patent Term Adjustment Patents Request for Examination South Korea

Share Your Patent Quality Pet Peeves

The USPTO is inviting stakeholders to suggest topics for patent quality case studies. As explained in the December 21, 2015 Federal Register Notice, “the USPTO performs case studies to investigate specific quality-related...more

1/7/2016 - AFCP Examiners Patent Prosecution Highway Patents USPTO

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

USPTO Plans To Hike Patent Fees

The USPTO has published proposed changes to patent fees that it says will “slightly” increase patent prosecution fees–even though several common fees will increase by 10% to 25%. The proposed changes to the Information...more

11/11/2015 - Comment Period Fees Information Disclosure Statement Patents USPTO

Wertheim, Dynamic Drinkware and the AIA

In Dynamic Drinkware, LLC v. National Graphics, Inc., the Federal Circuit held that in order for a patent to qualify as prior art as of its provisional application filing date, the provisional application must support the...more

11/4/2015 - America Invents Act Effective Filing Date Patent Applications Patent Infringement Patent Litigation Patents Prior Art Provisional Applications USPTO

7 Popular Patent Law Writers to Follow Right Now

A shortlist of JD Supra writers covering the many complex issues of Patent Law and featured here for a number of reasons, including that they recently authored popular work in this realm....more

10/29/2015 - Corporate Counsel Legal Perspectives Patents Popular Young Lawyers

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