News & Analysis as of

Product of Nature Doctrine

Probiotics: IP Perspectives on the Microbiome

Once considered parasites, free riders, or “opportunistic pathogens,” in recent years the roughly 100 trillion symbiotic bacteria that inhabit the various tissues of the human body have been increasingly recognized for their...more

EPO Stays Proceedings Over Patentability Of Plants And Animals

by Foley & Lardner LLP on

While the U.S. is still sorting out “natural products” jurisprudence under 35 USC § 101, the European Patent Office (EPO) is wrestling with the patentability of plants and animals, and has announced an immediate stay on all...more

Exploring the Legal Contours of Patent Subject Matter Eligibility

by Fenwick & West LLP on

I'd like to go back to some first principles and history. Article 1, Section 8 of the Constitution neatly divided the promotion of, on the one hand: Science, the fields of knowledge and ideas, by securing exclusive...more

USPTO's Patent Subject Matter Eligibility Roundtable on Dec. 5, 2015

by Fenwick & West LLP on

On December 5, 2016 the USPTO will hold its second Patent Subject Matter Eligibility Roundtable to discuss issues in patent eligibility. The USPTO published a list of eighteen questions in anticipation of the event, dealing...more

Federal Circuit Rules that Patents Directed to Collecting and Filtering Network Data Are Eligible, Further Refining Alice/Mayo...

by Brooks Kushman P.C. on

Amdocs (Israel) Ltd. v. Openet Telecom, Inc., No. 2015-1180 (Fed. Cir. Nov. 1, 2016) - In a recent case, the U.S. Court of Appeals for the Federal Circuit revisited the vexing problem of assessing patent eligibility...more

The Supreme Court’s Decisions Not to Hear Patent Cases Leaves Federal Circuit Decisions on Key Questions Intact

The Supreme Court recently declined to hear several patent cases, thus leaving the decisions by the Federal Circuit intact. Issues that were not taken up by the Supreme Court include (1) whether performing patented methods...more

MRCO v. Bandai Shows the Way to Broader Method Claims that Satisfy Alice and Mayo

It is said that one should cast a “wide net to catch the big fish.” In patent parlance, the wide net is the claims and the big fish are the competitors and customers. The computer/software industry and diagnostic industry,...more

Patent Rights in the U.S.: Is the Pendulum Finally Swinging Back to Center?

The U.S. patent system has long struggled to strike a balance that both encourages patent rights and prevents patent abuse. Finding that balance requires giving patent owners the right amount of patent enforcement power,...more

More Lessons From McRo

by Fenwick & West LLP on

My previous blog on McRo focused on the direct aspects of the decision, but there are other excellent points that the court makes and that can be derived from the opinion, and that should play an important role in how the...more

Investment in Biotechnology Companies -- Nature Biotechnology Report

Despite an understandable amount of gloom and doom in patenting circles regarding the effects of the recent Supreme Court and Federal Circuit jurisprudence on life sciences patents (Mayo v. Prometheus; AMP v. Myriad Genetics;...more

New USPTO Subject Matter Eligibility Guidance Following CellzDirect and Sequenom

On July 14, 2016, the U.S. Patent and Trademark Office issued new subject matter eligibility guidance for life science claims following a ruling by the Federal Circuit in Rapid Litigation Management v. CellzDirect, No....more

When Applying Alice, Evaluate the Invention as a Whole

by McDermott Will & Emery on

Addressing for the first time eligibility issues under 35 USC § 101 for a method of preserving organ cells, the US Court of Appeals for the Federal Circuit reversed the district court’s ruling that the claims were directed to...more

Federal Circuit Finds Life Sciences Subject Matter Patent Eligible

On July 5, 2016, the U.S. Court of Appeals for the Federal Circuit issued an opinion vacating the summary judgment of invalidity of U.S. Patent No. 7,604,929 (“the ’929 Patent”) and sent the case back to the District Court...more

Federal Circuit’s Application of Mayo Revives Biotech Patent

In Rapid Litig. Mgmt. Ltd v. CellzDirect, Inc., the Federal Circuit reversed a ruling of patent invalidity under Section 101, reviving a biotech patent to a method of preserving hepatocytes, liver cells, for medical use. The...more

USPTO Releases Memorandum on Subject Matter Eligibility

On May 4th the U.S. Patent and Trademark Office issued its latest Guidance on how Examiners are to apply recent U.S. Supreme Court and Federal Circuit precedent related to subject matter eligibility (see "USPTO Issues Update...more

Rapid Litigation Management Ltd. v. Cellzdirect, Inc. (Fed. Cir. 2016)

As we have had the occasion to say before regarding subject matter eligibility, "[o]ne swallow does not a summer make, nor one fine day . . . ," but the Federal Circuit may have engendered a glimmer of hope that it will once...more

Will the USPTO’s “Patents 4 Patients” Program Even Make It Off the "Cancer Moonshot" Launch Pad?

by Fenwick & West LLP on

The White House recently announced the Cancer Moonshot Task Force, an effort to “focus on making the most of Federal investments, targeted incentives, private sector efforts from industry and philanthropy, patient engagement...more

Carry on as Before: Supreme Court Refuses Sequenom’s Petition

To the surprise of many, including myself, the Supreme Court denied Sequenom’s petition for writ of certiorari (“Petition”). Sequenom asked the Court whether the inventive concept required under the Mayo/Myriad framework can...more

Supreme Court Denies Certiorari in Sequenom v. Ariosa

The Supreme Court issued an order this morning denying certiorari in Sequenom, Inc. v. Ariosa Diagnostics, Inc. Patent Docs will provide more analysis of the Court's denial of certiorari in a subsequent post....more

Fingers Crossed: Supreme Court to Decide Patentability of Newly Discovered Natural Phenomena

The Federal Circuit threw down the gauntlet, and we are waiting to see whether the U.S. Supreme Court will take it up. Sequenom’s petition for certiorari was scheduled for conference on June 23rd; the Court’s decision whether...more

Amicus Briefs in Support of Sequenom's Petition for Certiorari: Eli Lilly and Company et al.

In March, following the Federal Circuit's denial of Sequenom's petition for rehearing en banc, Sequenom filed a petition for certiorari for Supreme Court review of the Federal Circuit's decision in Ariosa Diagnostics, Inc. v....more

Two Years After Alice: A Survey of the Impact of a "Minor Case" (Part 1)

by Fenwick & West LLP on

Two years ago this Sunday, the Supreme Court in Alice Corp. Pty Ltd. v. CLS Bank Int'l addressed a relatively narrow issue: does a claim reciting a generic computer implementation transform an abstract idea into a...more

Femto-Sec Tech, Inc. v. Lensar, Inc. (C.D. Cal. 2016)

Patent Having Claims That Apply Law of Nature Is Patent-Eligible - On June 8, 2016, the U.S. District Court for the Central District of California issued an order denying a motion to dismiss, and found that U.S. Patent...more

Ariosa Files Opposition to Sequenom’s Cert Petition

Ariosa Diagnostics, Inc., Natera, Inc., and DNA Diagnostics Center, Inc. have filed briefs in opposition to Sequenom’s petition for writ of certiorari to the Supreme Court for review of the Federal Circuit’s decision holding...more

USPTO Issues Memorandum Regarding Enfish and TLI

On the heels of the Federal Circuit handing down two subject matter eligibility decisions regarding software, the U.S. Patent and Trademark Office has published a memo to its examining corps regarding these cases. On May 12,...more

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