Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Federal Circuit Finds No "Way" To Support Doctrine Of Equivalents

In Akzo Nobel Coatings, Inc. v. Dow Chemical Co., the Federal Circuit upheld the district court’s grant of summary judgment of no infringement under the doctrine of equivalents because the patent holder had failed to...more

2/10/2016 - Doctrine of Equivalents Dow Chemical Expert Testimony Patent Infringement Patent Litigation Summary Judgment

Asset Transferee Cannot Appeal Reexamination

The Federal Circuit dismissed the appeal in Agilent Technologies, Inc. v. Waters Technologies Corp., because the appellant was not a “third-party requester” dissatisfied with the final decision in an inter partes...more

2/5/2016 - Asset Transfer Inter Partes Reexamination Inter Partes Review Proceedings Patent Litigation Patent Trial and Appeal Board Right To Appeal Standing Successors

Purdue OxyContin Patents Invalid Despite Stemming From Discovery Of Source Of Toxic Impurity

In Purdue Pharma L.P. v. Epic Pharma LLC, the Federal Circuit affirmed the district court decision holding four OxyContin patents invalid as obvious. In so doing, the court rejected Purdue’s arguments that its discovery of...more

2/5/2016 - ANDA Method Claims Mylan Pharmaceuticals Obviousness OxyContin Patent Invalidity Patent Litigation Pharmaceutical Patents Popular Teva Pharmaceuticals

Incomplete Restriction Requirement Stops Clock For Patent Term Adjustment

In Pfizer v. Lee, the Federal Circuit affirmed the decision of the U.S. District Court for the Eastern District of Virginia that upheld the USPTO’s Patent Term Adjustment (PTA) calculation that stopped the clock running...more

1/27/2016 - Notice Requirements Patent Applications Patent Litigation Patent Term Adjustment Pfizer Popular USPTO

PTAB Denies Challenge Of Abbvie Humira Patents

The USPTO Patent Trial and Appeal Board (PTAB) denied institution of two Inter Partes Review challenges brought by Amgen, Inc. against two Humira patents covering stable formulations of anti-human Tumor Necrosis Factor alpha...more

1/19/2016 - Amgen Biosimilars BPCIA Inter Partes Review Proceedings Obviousness Patent Litigation Patent Trial and Appeal Board

PTAB Trial Standard Of Review Requires Affirmance Despite Contrary Evidence

In Merck & Cie v. Gnosis S.p.A., the Federal Circuit affirmed the decision of the USPTO Patent Trial and Appeal Board (PTAB) that held the challenged claims obvious in an Inter Partes Review (IPR) proceeding. Although the...more

1/15/2016 - Agency Deference Inter Partes Review Proceedings Merck Obviousness Patent Litigation Patent Trial and Appeal Board Standard of Review Substantial Evidence Standard

Losing Competing Property Not A Teaching Away

In In re Urbanski, the Federal Circuit upheld the decision of the USPTO Patent Trial and Appeal Board (PTAB) finding the claims of Urbanski’s patent application obvious. Urbanski had argued that the cited references taught...more

1/13/2016 - Obviousness Patent Applications Patent Litigation Patent Trial and Appeal Board Prior Art

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

Higher PTAB Trial Fees On The Horizon

The USPTO has released proposed patent fee changes that include significant increases to PTAB trial fees. The proposed changes are summarized in the USPTO’s “Executive Summary” prepared for the Patent Public Advisory...more

1/7/2016 - Covered Business Method Proceedings Inter Partes Review Proceedings Patent Trial and Appeal Board Post-Grant Review Trial Fees USPTO

Federal Circuit Orders IPR Remand On Board's Treatment Of Evidence

In Ariosa Diagnostics v. Verinata Health, Inc., the Federal Circuit vacated and remanded two parallel final written decisions in favor of the Patent Owner, because it could not discern whether the Board had incorrectly...more

1/7/2016 - Expert Testimony Inter Partes Review Proceedings Patent Litigation Patent Trial and Appeal Board Remand Vacated

Did The PTAB Dose The AIA Poison Pill Incorrectly Against Premium Genetics?

In Inguran, LLC v. Premium Genetics (UK) Ltd., the USPTO Patent Trial and Appeal Board (PTAB) instituted Post Grant Review (PGR) proceedings in a patent granted from an AIA transition application based on its finding that at...more

1/5/2016 - America Invents Act Anticipation Effective Filing Date First-to-File Patent Applications Patent Trial and Appeal Board Post-Grant Review

Australian Patent Office Provides Patent Eligibility Guidance

The Australian Patent Office (IP Australia) has issued final patent eligibility guidance under the Australian High Court’s decision in D’Arcy v. Myriad Genetics, Inc. Where the USPTO extrapolated from the U.S. Supreme Court...more

12/17/2015 - Australia Australian Patent Office Myriad Patent Litigation Patent-Eligible Subject Matter Pharmaceutical Patents

Biosimilar Pre-Marketing Notice Always Required

Judge Cohn of the U.S. District Court for the Southern District of Florida has issued another decision interpreting the complicated provisions of the Biologics Price Competition and Innovation Action (BPCIA), ruling that the...more

12/16/2015 - Amgen Apotex Biosimilars BPCIA FDA Approval Patent Dance Pre-Market Notification Preliminary Injunctions Sandoz v Amgen

Interference Statute Does Not Require Diligence For Re-Presenting Claims

In In re: Commonwealth Scientific & Industrial Research Organisation, the Federal Circuit held that pre-AIA 35 USC §135(b)(1) does not embody a diligence requirement, such that interfering claims presented more than 5 years...more

12/11/2015 - Interference Proceeding Patent Applications Patent Litigation Patent Trial and Appeal Board Safe Harbors

Judge Lourie Suggests Jepson Claims For Patent Eligibility

As reported previously, the Federal Circuit has denied rehearing in Ariosa Diagnostics, Inc. v. Sequenom, Inc. I wrote about Judge ‘Dyk’s opinion concurring in the denial but offering alternative views on patent eligibility...more

12/8/2015 - Abstract Ideas Diagnostic Method Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Petition For Rehearing SCOTUS Sequenom

Judge Dyk Would Add Reduction To Practice To Patent Eligibility Requirement

As noted in a previous article, the Federal Circuit has denied rehearing in Ariosa Diagnostics, Inc. v. Sequenom, Inc.. The per curiam order was accompanied by two separate concurring opinions, one authored by Judge Lourie...more

12/5/2015 - CLS Bank v Alice Corp Life Sciences Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Reduction to Practice Scope of the Claim SCOTUS Sequenom

Federal Circuit Denies Rehearing In Sequenom

The Federal Circuit has denied the petition for rehearing en banc in Ariosa Diagnostics, Inc. v. Sequenom, Inc., despite the filing of twelve amicus briefs in support of the petition, including briefs filed by Biotechnology...more

12/4/2015 - En Banc Review Patent Litigation Patent-Eligible Subject Matter Petition For Rehearing Pharmaceutical Patents Sequenom

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

Federal Circuit Interprets Two Important Infringement Provisions

In a single decision issued for companion cases Momenta Pharmaceuticals, Inc. v. Teva Pharmaceuticals USA Inc. and Momenta Pharmaceuticals, Inc. v Amphastar Pharmaceuticals, Inc., the Federal Circuit interpreted two important...more

11/19/2015 - Patent Infringement Patent Litigation Pharmaceutical Patents Safe Harbors Summary Judgment Teva Pharmaceuticals

Federal Circuit to Revisit on Sale Bar Triggered by Contract Manufacture

Friday the 13th may have been The Medicines Company’s lucky day, since the Federal Circuit granted its petition for rehearing en banc in The Medicines Company v. Hospria, Inc. In the court’s original decision, which I...more

11/16/2015 - Amicus Briefs En Banc Review Hospira On-Sale Bar Patent Invalidity Petition For Rehearing

USPTO Proposes New IDS Framework

Tucked into the USPTO’s proposed patent fee changes is a proposal to change the Information Disclosure Statement (IDS) framework. While applicants may welcome the simplified procedures for obtaining consideration of an IDS,...more

11/13/2015 - Comment Period Foreign Patent Applications Information Disclosure Statement Patent Applications Patent Fees USPTO

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

Morsa II: Admissions Enable Prior Art

In its 2013 decision in In re Morsa, the Federal Circuit vacated an anticipation rejection where “both the Board and the examiner failed to engage in a proper enablement analysis” to establish the enabling quality of the...more

10/28/2015 - Enablement Inquiries Examiners Obviousness Patent Applications Patent Litigation Patent Trial and Appeal Board Patents Prior Art USPTO

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