Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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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

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

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

Federal Circuit Recognizes Limited Patent Agent Privilege

In In re Queen’s University At Kingston, a divided panel of the Federal Circuit recognized a limited “attorney”-client privilege for patent agents. The majority’s decision to recognize a patent agent privilege is based...more

3/15/2016 - Attorney-Client Privilege Duty of Candor Duty to Disclose Patent Agent Privilege Patent Applications Patent Litigation USPTO

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

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

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

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

PTAB Institutes Kyle Bass Lialda Patent IPR

After filing over thirty petitions for Inter Partes Review of Orange Book-listed patents for various drugs, Kyle Bass and his Coalition for Affordable Drugs finally have made it over the first hurdle. The USPTO Patent Trial...more

10/13/2015 - ANDA FDA Approval Generic Drugs Hedge Funds Inter Partes Review Proceedings Likelihood of Success Obviousness Orange Book Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents Pharmaceutical Patents Prescription Drugs Real Party in Interest USPTO

Australia High Court Rules Against Gene Patents

Colleagues in Australia have been spreading the bad news: The High Court of Australia followed the lead (?) of the U.S. Supreme Court and determined that Myriad cannot patent the isolated BRCA1 gene in Australia. Thanks to...more

10/9/2015 - AMP v Myriad Australia Biotechnology Chilling Effect Genetic Materials Innovation Mayo v. Prometheus Monopolization Myriad Patent Infringement Patent Litigation Patent-Eligible Subject Matter Patents Popular Scope of the Claim SCOTUS USPTO

USPTO Offers Small Entities One Streamlined Patent Appeal

In a September 15, 2015 Federal Register Notice, the USPTO announced a pilot program that will permit certain Small or Micro Entities to expedite a pending ex parte appeal. According to the Notice, the USPTO aims to decide...more

9/18/2015 - Appeals Corporate Counsel Ex Parte Federal Pilot Programs Federal Register Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents USPTO Young Lawyers

Improving Patent Quality With International Collaborative Search Pilot Programs

The USPTO has launched two new programs aimed at improving patent quality by joining forces with the Japanese Patent Office (JPO) or the Korean Intellectual Property Office (KIPO) at the initial stages of the patent...more

9/16/2015 - Collaboration Federal Pilot Programs Federal Register Foreign Patent Applications Intellectual Property Protection Japan JPO Patent Applications Patent Examinations Patentability Search Patents Popular South Korea USPTO

Board Boots Bass Tecfidera IPR on the Merits

On September 2, 2015, the USPTO Patent Trial and Appeal Board (PTAB) denied institution of another Inter Partes Review brought by Kyle Bass, the Coalition for Affordable Drugs, and other related entities. In denying the...more

9/8/2015 - Generic Drugs Hedge Funds Inter Partes Review Proceedings Obviousness Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents Pharmaceutical Patents Prescription Drugs Prior Art USPTO

Parsing USPTO Petitions Data

The USPTO has launched a Petitions Timeline that provides information on the types of petitions that can be filed at each stage of prosecution, the average time to decision and grant rate, and the deciding office. While some...more

9/3/2015 - Patent Infringement Patent Litigation Patent Prosecution Highway Patents USPTO

PTAB Denies Institution of Kyle Bass's Ampyra Patent Challenge

The USPTO Patent Trial and Appeal Board (PTAB) has put an end to Kyle Bass’s Ampyra patent challenge, by denying institution of Inter Partes Review (IPR) proceedings. While many were hoping the PTAB would render a decision...more

8/26/2015 - Abuse of Process Generic Drugs Hedge Funds Inter Partes Review Proceedings Orange Book Patent Infringement Patent Litigation Patent Owner Preliminary Response Patent Trial and Appeal Board Patents Pharmaceutical Patents Prescription Drugs Prior Art Real Party in Interest USPTO

Sanofi Seeks IPR of Cabilly Patent

On July 27, 2015, Sanofi-aventis U.S. LLC and Regeneron Pharmaceuticals, Inc. filed a petition for Inter Partes Review (IPR) of the “Cabilly II” patent, U.S. Patent No. 6,331,415. The Cabilly II patent granted shortly after I...more

7/31/2015 - Biotechnology Bristol-Myers Squibb Genentech Inter Partes Review Proceedings Patent Infringement Patent Litigation Patents Sanofi-Aventis USPTO

Can You File an RCE in That U.S. National Stage Application?

Since the implementation of the America Invents Act on September 16, 2012, and the Technical Corrections Act on January 14, 2013, Applicants have been able to delay submission of an executed inventors’ oath/declaration in a...more

7/29/2015 - America Invents Act Design Patent Federal Register Industrial Design Inventors New Regulations Patents Request for Continued Examination USPTO

Federal Circuit Answers Questions About Covered Business Method Review Proceedings

In Versata Development Group, Inc. v. SAP America, Inc., the Federal Circuit outlined the permitted extent of judicial review of Covered Business Method (CBM) patent review proceedings conducted by the USPTO Patent Trial and...more

7/23/2015 - America Invents Act Broadest Reasonable Interpretation Standard Claim Construction Covered Business Method Patents Covered Business Method Proceedings Judicial Review Patent Infringement Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patent-Eligible Subject Matter Patents USPTO

Federal Circuit Upholds Broadest Reasonable Interpretation in Inter Partes Review

A divided Federal Circuit denied the petition for rehearing en banc that would have required the court to revisit its decision in In re Cuozzo Speed Technologies, LLC (Fed Cir 2015), that upheld the USPTO’s use of the...more

7/23/2015 - America Invents Act Broadest Reasonable Interpretation Standard Claim Construction En Banc Review Inter Partes Review Proceedings Patent Infringement Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patents Pending Legislation Petition For Rehearing Popular Post-Grant Review USPTO

Federal Circuit Upholds USPTO Post-Wyeth Patent Term Adjustment Procedures

In Daiichi Sankyo Co. v. Lee, the Federal Circuit upheld the USPTO’s post-Wyeth Patent Term Adjustment (PTA) procedures, and found that the USPTO did not abuse its discretion when it limited the Interim Procedures to...more

7/7/2015 - Administrative Procedure Act Patent Litigation Patent Term Adjustment Patents Summary Judgment USPTO Wyeth

Examination Delay Earns Patent Term Adjustment Only In One Application

In Mohsenzadeh v. Lee, the Federal Circuit affirmed the district court’s decision that the USPTO’s delay in issuing a Restriction Requirement in a parent application does not earn Patent Term Adjustment (PTA) for the ensuing...more

7/3/2015 - Delays Divisional Applications Patent Applications Patent Litigation Patent Term Adjustment Patents Summary Judgment USPTO

Federal Circuit Strikes Final Blow to Celebrex Patent

In 2008, the Federal Circuit determined that claims 1-4 and 11-17 of U.S. Patent No. 5,760,068 were invalid for obviousness-type double patenting (OTDP) over a related parent patent, in part because the ‘068 patent was filed...more

6/27/2015 - Divisional Applications Double Patent OTDP Patent Applications Patent Invalidity Patent Litigation Patents Pfizer Pharmaceutical Industry Pharmaceutical Patents Reissue Patents Safe Harbors USPTO

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