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The PTAB Warns Attorney That Speaking Objections May Warrant Exclusion of Expert's Testimony

In an inter partes review Medtronic Inc. et al. v. Troy R. Norred, M.D., the Petitioner sought guidance from the Board regarding the Patent Owner's objections during the deposition of an expert appearing on behalf of the...more

Rare Grant (in Part) of an IPR Motion to Exclude

Motions to Exclude Evidence have been one of the features of inter partes review practice that have, to date, had a less significant effect than expected. Very few motions have been granted, largely because the Board...more

Depomed, Inc. v. Actavis Elizabeth LLC

Nature of the Case and Issue(s) Presented: Depomed sued Actavis for infringing seven patents related to a dosage form capable of being retained in the stomach, allowing for the delayed-release of gabapentin in the small...more

Surviving Inter Partes Review: Good Experts Are Key

Inter partes review and covered business method review (collectively IPR) proceedings have now settled in as a new strategic tool for invalidating asserted patents. The early cases that have worked through to a final written...more

Know the Patent Specification Before Filing a Motion to Amend

Veeam Software Corp. v. Symantec Corp. - Addressing issues of claim construction and the requirements for a motion to amend, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (Board) ruled that the...more

E.D. Texas court grants stay of litigation pending an IPR based, in part, on patent owner's failure to timely respond to the stay...

In Norman IP Holdings v. TP-Link Technologies, Co., et al., the Defendants moved to stay the litigation pending completion of an inter partes review involving the patents-in-suit. The plaintiff did not respond to the motion....more

An Overdue Discussion of the PTABs Grant of the First IPR Motion to Amend

It is hard to explain how this post, discussing the first ever granted Motion to Amend in an inter partes review, sat in “draft” mode for over 5 months. This is especially perplexing given the difficulty Patent Owners are...more

Fresenius Kabi USA, LLC v. Dr. Reddy’s Labs., Ltd.

Nature of the Case and Issue(s) Presented: Plaintiff filed suit alleging infringement of claims 1, 16, 36, and 37 of each of the patents-in-suit. The patents-in-suit all claim pharmaceutical compositions containing propofol...more

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

AntiCancer, Inc. v. Pfizer, Inc. (Fed. Cir. 2014)

Anyone that has been monitoring the outcome of district court cases recently will be aware of the perils of not including sufficient information, or not timely supplementing, preliminary infringement or invalidity contentions...more

Who Is Alice and Why Is She Invalidating Patents?

On June 19, 2014, the Supreme Court issued its decision in Alice Corporation Pty. Ltd. v. CLS Bank International, clarifying what it means to be patentable subject matter. With one stroke of the pen, the Supreme Court...more

Fujitsu v. Tellabs: Fujitsu Appeal's Decision on Motion to Compel and, After It Loses on Appeal, District Court Orders a Civil...

In this patent infringement action, the district court granted a motion to compel filed by Tellabs against Fujitsu. Fujitsu then filed a petition for a writ of mandamus with the Federal Circuit to overturn the decision of the...more

Additional Discovery Relating to Real Party in Interest

In VMware, Inc. v. Good Technology Software, Inc., IPR2014-01324, Paper 11 (October 20, 2014), the Board allowed the patent owner to move for additional discovery regarding the real party in interest, one of the few topics...more

United Therapeutics Corp. v. Sandoz, Inc.

Nature of the Case and Issue(s) Presented: UTC claimed that Sandoz induced infringement of the ’007 patent by instructing physicians to dilute its product for use intravenously. The asserted claim required a particular...more

Do-Gooders Need Not Apply

According to its mission statement, Consumer Watchdog is a non-profit entity “dedicated to providing an effective voice for taxpayers and consumers in an era when special interests dominate public discourse, government and...more

The Indefiniteness of What is "Routine, Well-understood and Conventional" in Assessing Patent Eligibility of Diagnostic Method...

Castigating the Supreme Court, at least in patent circles, has become as prevalent as the Court's forays into patent law have been to overrule the Federal Circuit. While even those who give the Court the benefit of the doubt...more

We double checked, and we were right!

Several of the Board’s decisions in inter partes reviews are now on appeal. The statute specifically allows the Patent Office to intervene, which is bit like allowing a district court judge to intervene in the appeal of a DJ...more

PTAB Disqualifies Art as Being Non-Analogous to Claimed Invention

A limited number of cases, to date, have dealt with the issue of analogous prior art in an obviousness analysis. In Schott Gemtron Corp. v. SSW Holding Co., IPR2014-00358, the Board addressed this type of issue, finding in...more

Novartis Pharms. Corp. v. Par Pharm., Inc.

Nature of the Case and Issue(s) Presented: The one asserted claim in the ’031 patent, claim 7, depends from non-asserted independent claim 1. Claim 7 narrows claim 1 by limiting it to a specific delivery method and requires...more

Myriad’s Continuing Patent Debate

On October 6, 2014, the U.S. Court of Appeals for the Federal Circuit entertained oral argument in the interlocutory appeal of the district court’s denial of Myriad’s motion for preliminary injunction against Ambry Genetics....more

Supreme Court: Should Appeal Give Deference to Lower Courts on Claim Construction?

On October 15, the Supreme Court heard oral argument in Teva Pharmaceuticals USA Inc., et al. v. Sandoz Inc., et al., case number 13-854. At issue is the level of deference that the Court of Appeals for the Federal Circuit...more

Court Report - October 2014 #3

About Court Report: Each week we will report briefly on recently filed biotech and pharma cases. Tris Pharma Inc. v. Actavis Laboratories FL Inc. et al. 1:14-cv-01309; filed October 15, 2014 in the District Court of...more

Hospira, Inc. v. Burwell

Nature of the Case and Issue(s) Presented: Precedex is commonly used as a sedative. Specifically, the FDA has approved Precedex for two uses: (i) sedation of initially intubated and mechanically ventilated patients during...more

Apotex Inc. v. UCB, Inc.

Nature of the Case and Issue(s) Presented: Apotex appealed the district court’s finding that the ’556 patent was unenforceable due to inequitable conduct. The ’556 patent describes a method for making moexipril tablets used...more

First Final CBM Decision Invalidates Patent Under § 101

U.S. Bancorp v. Retirement Capital Access Management Co. - In the first final written decision issued in a Covered Business Method (CBM) proceeding, the Patent Trial and Appeal Board (PTAB, the Board) ruled that it has...more

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