Patents

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Fetal Diagnostics Patent Claims Fall in Inter Partes Review

Post grant inter partes review proceedings have lowered the hurdle to invalidate U.S. patents. The “broadest reasonable construction” of the claims and the lower burden to prove invalidity (by a preponderance of the evidence)...more

Federal Circuit Applies Alice to Biotechnology in Striking Down Myriad Method of Screening Claims, Leaves Door Open for Narrower...

On December 17, 2014, a three judge panel of the Federal Circuit issued a ruling that may significantly narrow the scope of patent eligible subject matter with respect to method claims in the biotechnology field. The...more

Court Report - December 2014 #2

About Court Report: Each week we will report briefly on recently filed biotech and pharma cases. Eli Lilly and Company v. Sandoz Inc. 1:14-cv-02008; filed December 5, 2014 in the Southern District of...more

The view from the UK and France of the fundamental reform in European patent law

The introduction of a unitary patent and a unified patent court system is viewed as a very exciting prospect. Somewhat paradoxically, however, the introduction of the UP will mean that three types of patents will become...more

More Misinformation Regarding the Patent System and Non-Practicing Entities

The press has been all too eager to decry the so-called "broken" U.S. patent system and the alleged "scourge" of non-practicing entities (NPEs). However, few if any articles attempt to provide an even-handed analysis of...more

More Biotech and Diagnostic Patents At Risk After Federal Circuit Decision

On December 17, 2014, the Federal Circuit Court of Appeals found that certain claims relating to Myriad’s BRCA1 genetic test for breast and ovarian cancer were invalid under 35 U.S.C. § 101 as being ineligible for patent...more

New Patent Eligibility Guidance: USPTO Tones Down the Rhetoric

On December 15, 2014, the U.S. Patent and Trademark Office issued its long-awaited Interim Guidance on Patent Subject Matter Eligibility (published in the Federal Register on December 16). The Guidance supersedes the...more

Judge Forrest rejects Leveraged Innovations’ second bite at the apple in seeking to enforce its patented technology because of its...

Direxion Shares, ETF Trust v. Leveraged Innovations L.L.C. Case Number: 1:14-cv-01777-KBF - On March 14, 2014, Direxion Shares, ETF Trust (“Direxion”) filed a declaratory judgment action against Leveraged...more

Don’t Forget Indefiniteness as a Ground for Invalidation in a CBM Patent Review

The PTAB recently instituted a covered business method patent review (CBM) based on grounds that include asserted indefiniteness under 35 U.S.C. § 112, second paragraph....more

Federal Circuit Invalidates Myriad Primer and Method Claims as Lacking Subject Matter Eligibility

In a case styled as In re BRCA1- and BRCA2-Based Hereditary Cancer Test Patent Litigation (also known as Myriad v. Ambry), the Federal Circuit held four of Myriad’s “primer” claims and two of Myriad’s detection method claims...more

The FTC gets activist post-Actavis

In 2013, the FTC left its mark on the pharmaceutical industry when the Supreme Court ruled in FTC v. Actavis that settlement agreements for patent infringement suits between branded and generic drug companies are not immune...more

European patent law: fundamental reform ahead

The European Union member states are preparing to introduce a new European Patent with Unitary Effect and a single Unified Patent Court with divisions located throughout Europe. With this package of broad patent reforms, the...more

Challenging “Obvious to Try” during Patent Prosecution

Suppose your client’s patent application is rejected as allegedly obvious under 35 USC §103, and the Examiner cites one or more references and sets forth an “obvious to try” rationale in an Office action. Here are some tools...more

Design Patent Case Digest: Young v. Stone

Decision Date: August 28, 2014 - Court: N.D. Illinois - Patent: D442,661 - Holding: Defendant’s motion for judgment on the pleadings of non-infringement - GRANTED Opinion: Plaintiff...more

The German perspective on the fundamental reforms in European patent law

Arguably, Germany is the jurisdiction which has the most to lose with the introduction of the UPC. The German patent infringement courts have built a reputation of offering an attractive combination of quality, speed and a...more

IPR Motions for Joinder are Common, But Not Automatic

Recent statistics show that motions for joinder are granted about 60% of the time. While parties can, therefore, expect a sympathetic ear regarding these motions, they are not always successful and it is worth noting the...more

USPTO Publishes New (and Largely Improved) Guidance for Subject Matter Eligibility

Today the USPTO published its much heralded revised 2014 Interim Guidance on Patent Subject Matter Eligibility under 35 U.S.C. § 101 in view of the Mayo1, Myriad2, and Alice3 Supreme Court decisions. The December 2014...more

The view from the US of the fundamental reform in European patent law

While a radical departure from prior practice in the EU, the concept of a European Patent with Unitary Effect will be familiar to US practitioners. That is because the Unitary Patent (UP) System is an “all eggs in one basket”...more

The Italian position on the fundamental reform in European patent law

From a foreign perspective, it is not easy to understand the difference between UP and UPC. If you are Italian, the distinction is extremely clear, as Italy joined the newly established unified patent court system (the UPC)...more

Sandoz Was Disinvited to the Patent Dance: The Federal Circuit's First Interpretation of the BPCIA Will Have to Wait

Since the 1984 enactment of the Drug Price Competition and Patent Term Restoration Act, Hatch-Waxman litigation has dominated the sphere of life-sciences patent litigation. The battle between proprietary and generic...more

Additional (punitive) damages for flagrant patent infringement awarded against ex-employee

What happens when an employee: - leaves your company; - convinces your manufacturer to stop supplying your (patented) product to you and supply it to him instead; and - then starts selling this product to one of...more

USPTO Patent Eligibility Guidelines

What is eligible to be patented in the US? This week the U.S. Patent and Trademark Office (USPTO) released Interim Eligibility Guidance on patent subject matter eligibility. In this document, the USPTO summarizes the...more

The USPTO’s New Guidance Simplifies Prosecution by Clarifying Subject-Matter Eligibility of Patents

The U.S. Patent and Trademark Office (PTO) issued new guidance on Dec. 8, 2015 that provides improved clarity to those prosecuting patent applications in the computer-implemented and biochemical arts. Although many questions...more

USPTO Issues “2014 Interim Guidance on Patent Subject Matter Eligibility”

On December 15, 2014, the USPTO published a document titled “2014 Interim Guidance on Patent Subject Matter Eligibility” (Interim Guidance). The new Interim Guidance follows the previous preliminary examination instructions...more

Update: Sandoz and Celltrion Decline the Invitation to Dance: Biosimilars Challenge the Applicability of the BPCIA’s Exchange...

In our previous blog post of November 11, 2014, we noted that Celltrion had filed a declaratory judgment action against Kennedy Trust for Rheumatology Research for invalidity of certain patents covering methods of treating...more

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