Appeals Patents

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Federal Circuit Rules That Not All Petitioners Have Standing to Appeal Adverse IPR ResultsFederal Circuit Rules That Not All...

The Federal Circuit recently dismissed an appeal from an inter partes review proceeding where the appellant/petitioner failed to establish that it had constitutional standing to maintain an appeal. Phigenix, Inc. v....more

Transubstantiation of a Machine into an Abstract Idea

In the Catholic Church “transubstantiation” is the belief that the wafer and the wine become the actual body and blood of Christ during the communion ceremony. Recently, the PTAB went into the mystic to transform claims to a...more

Federal Circuit Requires Standing to Appeal PTAB’s Final Decisions

Although arguably foreshadowed, some may be surprised to learn that a party with the right to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) may not have the right to appeal an...more

Inherent Anticipation for Biotechnology Inventions

Anticipation by inherent disclosure requires that a single prior art reference necessarily includes the unstated limitation. The unpredictable nature of biological processes means that winning summary judgment of invalidity...more

Apotex’s Infringement of AstraZeneca’s Omeprazole Formulation Patent Upheld

The Federal Court of Appeal, in a unanimous decision released on January 12, 2017 (2017 FCA 9), has affirmed the validity of AstraZeneca’s Patent No. 1,292,693. The patent covered AstraZeneca’s successful product, LOSEC, for...more

Instructions Induced Prescribing Physicians to Infringe

In Eli Lilly and Company v. Teva Parenteral Medicines, Inc., [2015-2067] (January 12, 2017), the Federal Circuit affirmed judgment of inducement of infringement of U.S. Patent No. 7,772,209, and that the the asserted claims...more

Federal Circuit Finds IPR Petitioner Lacks Standing To Appeal

On January 9, 2017, in Phigenix, Inc. v. Immunogen, Inc., the Federal Circuit held that petitioner Phigenix lacked standing to appeal an adverse final written decision in an IPR. While acknowledging that the AIA permits a...more

Federal Circuit Requires Standing To Appeal An IPR Decision

In the case of Phygenix, Inc. v. ImmunoGen, Inc., the Court of Appeals for the Federal Circuit (CAFC) held that the petitioner (Phygenix) that had unsuccessfully challenged certain claims of ImmunoGen’s U.S. Patent No....more

An IPR Does Not Necessarily Have Standing to Appeal if it Loses

In Phigenix, Inc. v. ImmunoGen, Inc., [2016-1544] (January 9, 2017), the Federal Circuit held that Phigenix, the losing petitioner in an IPR, lacked standing to appeal the PTAB’s decision that claims 1–8 of U.S. Patent No....more

When it’s Over, it’s Over

In Walker v. Health International Corp., [2015-1676] (January 6, 2017), the Federal Circuit affirmed the district court’s award of sanctions for vexatious actions in continuing to litigate after the parties settled all...more

Federal Circuit Dismisses IPR Appeal for Lack of Standing

In Phigenix v. ImmunoGen, Appeal No. 16-1544 (Fed. Cir. Jan. 9, 2017), a precedential decision, the Federal Circuit found that the petitioner lacked standing to appeal the Patent Trial and Appeal Board’s (PTAB) final written...more

Full Federal Circuit To Consider Appealability of PTAB Decision On Timeliness of IPR Petition

The Federal Circuit has ordered en banc review to consider whether the timeliness of a petition for inter partes review (IPR) can be appealed following the Patent Trial and Appeal Board’s decision to institute review. Wi-Fi...more

Full Federal Circuit To Consider Appealability of PTAB Decision On Timeliness of IPR Petition

The Federal Circuit has ordered en banc review to consider whether the timeliness of a petition for inter partes review (IPR) can be appealed following the Patent Trial and Appeal Board’s decision to institute review. Wi-Fi...more

Supreme Court Will Spill Some Ink Regarding Patent Exhaustion Doctrine

The Supreme Court of the United States granted a petition for a writ of certiorari appealing a US Court of Appeals for the Federal Circuit en banc decision holding that a patent owner did not exhaust its US patent rights when...more

In re Van Os (Fed. Cir. 2017)

"Intuitive" to Combine Insufficient to Support Obviousness Rejection - The Federal Circuit recently issued a decision in an appeal from the U.S. Patent and Trademark Office Patent Trial and Appeal Board in a case...more

An Examination “Off-Ramp” For Motions To Amend Still Raises Hopes and Questions

During the first three years of implementing the America Invents Act (AIA), Patent Trial and Appeal Board (PTAB) decision-making created a perception that a patent owner’s ability to amend claims during a post-grant...more

Nexium Case Extends Actavis Ruling

Addressing a pay-for-delay and pharmaceutical-settlement antitrust jury trial for the first time since the 2012 Supreme Court of the United States decision in FTC v. Actavis (IP Update, Vol. 16, No. 7), the US Court of...more

Federal Circuit to Reconsider Achates Decision en banc

The Federal Circuit is set to reconsider one of its more controversial decisions en banc, when it decides whether the Achates Reference Publishing, Inc. v. Apple Inc. decision was correctly decided. Specifically, in Wi-Fi...more

District Court Dismisses USPTO December 2015 Holidays Case

On December 2, 2016, Judge O’Grady of the U.S. District Court for the Eastern District of Virginia granted the USPTO’s motion to dismiss the complaint brought by Elm 3DS Innovations, LLC over the “holidays” declared December...more

Broadest Reasonable Interpretation Does Not Include Legally Incorrect Interpretation

In D’Agostino v. Mastercard International, Inc., [2016-1592, 2016-1593] (December 22, 2016), the Federal Circuit vacated the PTAB’s decision in two Inter Partes Reviews that the challenged claims in U.S. Patent Nos. 7,840,486...more

Alice Brings a Mix of Gifts For 2016 Holidays

Like the odd aunt whose holiday gifts can range from the wonderful to the recyclable, in 2016 Alice brought both good and bad tidings. Let’s start with the nice ones....more

Reduced Scope of Post-IPR Estoppel Imperils Litigation Stays

In Depomed, Inc. v. Purdue Pharma LP et al., 3-13-cv-00571 (NJD November 4, 2016, Mem. Op. Dkt. 238) (Bongiovanni, MJ), the Court analyzed and applied recent Federal Circuit decisions limiting the scope of post-IPR estoppel...more

IPR Estoppel Narrowed Even Further in D. Delaware Ruling

Despite the astounding success for patent challengers to date in IPR proceedings, are you one who has been worried about the effects of the IPR estoppel in future litigation? Has this concern dissuaded you from considering...more

Unreasonable Claim Construction Causes PTAB Reversal

In a fairly case-specific claim construction analysis, the Federal Circuit reversed the PTAB recently in D’Agostino v. Mastercard, Int’l, 2016-1592, -1593 (Fed. Cir. Dec. 12, 2016), finding that the Board erred in determining...more

Invention Must Inevitably Result to be Anticipated by Inherency

In U.S. Water Services, Inc., v. Novozymes A/S, [2015-1950, 2015-1967] (December 15, 2016), the Federal Circuit vacated summary judgment of anticipation and affirmed the denial of summary judgment of no inequitable conduct....more

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