Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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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

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

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 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

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

Methods Exploiting Junk DNA May Be Useful But Lack Patent Eligibility

Striking another blow against patent eligibility in the field of biotechnology, the Federal Circuit agreed with the district court that methods that use “junk DNA” to detect genetic variations lack patent eligibility under 35...more

4/12/2016 - Biotechnology CLS Bank v Alice Corp Corporate Counsel Diagnostic Method DNA Federal Rule 12(b)(6) Genetic Technologies Ltd. Machine-or-Transformation Test Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter SCOTUS

Amgen Hedges Its Bets With Cross-Petition For Certiorari Of Biosimilar Decision

Although Amgen originally did not petition the Supreme Court for certiorari to review the first Federal Circuit decision interpreting the BPCIA framework for resolving biosimilar patent disputes, Amgen now has filed a...more

4/12/2016 - Amgen Biosimilars BPCIA FDA Injunctive Relief Notice Requirements Patent Litigation Petition for Writ of Certiorari Pharmaceutical Patents Sandoz Sandoz v Amgen SCOTUS

Will the Federal Circuit Invalidate 13,500 Continuation Patents?

The Federal Circuit is set to hear oral arguments in Immersion Corp. v. HTC Corp. on May 6, 2016. According to the amicus brief filed on behalf of the United States, if the court affirms the district court decision “over...more

4/8/2016 - Amicus Briefs Chevron Deference HTC America Patent Applications Patent Invalidity Patent Litigation USPTO

Second Time Is The Charm For Kyle Bass Challenges Of Ampyra Patents

The USPTO Patent Trial and Appeal Board (PTAB) has decided to institute inter partes review (IPR) proceedings against the Ampyra patents based on the second set of petitions filed by Kyle Bass and the Coalition for Affordable...more

4/1/2016 - Estoppel Inter Partes Review Proceedings Patent Invalidity Patent Litigation Patent Trial and Appeal Board Pharmaceutical Patents Printed Publications Prior Art

Sequenom Throws Diagnostic Method Patents At The Mercy Of The Supreme Court

It comes as no surprise that Sequenom has filed a petition for certiorari to the Supreme Court, asking the Court to review the Federal Circuit decision that upheld the district court decision that held its diagnostic method...more

3/28/2016 - Diagnostic Method Mayo v. Prometheus Method Claims Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Petition for Writ of Certiorari SCOTUS Section 101 Sequenom

Federal Circuit Finds Personal Jurisdiction Based On Plans To Market ANDA Product

In Acorda Therapeutics Inc. v. Mylan Pharmaceuticals Inc., the Federal Circuit held that the filing of an Abbreviated New Drug Application (ANDA) and intentions to market the product across the United States–including in the...more

3/25/2016 - ANDA AstraZeneca Forum Shopping General Jurisdiction Generic Drugs Minimum Contacts Mylan Pharmaceuticals Patent Infringement Patent Litigation Personal Jurisdiction Pharmaceutical Patents Proposed Legislation Specific Jurisdiction

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

PTAB Institutes Kyle Bass IPRs Against Juxtapid Patents

The USPTO Patent Trial and Appeal Board (PTAB) decided to institute inter partes review (IPR) proceedings filed by Kyle Bass against two of the five Juxtapid patents listed in the Orange Book. Two of the cited references may...more

3/16/2016 - Inter Partes Review Proceedings Orange Book Patent Litigation Patent Owner Preliminary Response Patent Trial and Appeal Board Prior Art Priority Disputes Provisional Applications

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