Last Month at the Federal Circuit - October 2010

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In this Issue: The Federal Circuit Upholds Eli Lilly and Company’s Evista® Franchise to 2014; Korean Law Does Not Govern Successor Liability of Two U.S. Corporations; Claimed Subject Matter That Can Be “Envisioned” from the Specification Fails to Meet the Written Description Requirement; Misidentifying Best Mode Did Not Warrant SJ and Trademark Counterclaims Met Case or Controversy Standard; DJ Action Based on Claim of Invalidity Not Barred by Settlement Agreement; Selection of and Motivation to Modify a Lead Compound Follows from the Possession of Useful Properties, Not Mere Structural Similarity; and more...

Excerpt From "The Federal Circuit Upholds..."

In Eli Lilly & Co. v. Teva Pharmaceuticals USA, Inc., Nos. 10-1005, -1033 (Fed. Cir. Sept. 1, 2010), the Federal Circuit affirmed the district court’s findings that the principal patents underlying Eli Lilly and Company’s (“Lilly”) blockbuster osteoporosis drug, Evista®, were valid and infringed. Specifically, U.S. Patent Nos. 6,906,086; RE39,049; RE38,968 (collectively “the Bone Loss Patents”); and RE39,050 (“the Low Dose Patent”) were held nonobvious and enabled. The Court therefore affirmed the district court’s permanent injunction preventing any manufacture or distribution of a generic version of Evista® until these patents expire in 2014. The Federal Circuit also affirmed the district court’s ruling that certain claims of other patents directed to particle size, U.S. Patent Nos. 6,458,811 and 6,894,064 (“the Particle Size Patents”) were invalid for lack of written description.

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