In my last post, I discussed estoppel in the context in inter partes review, in which defendant filed for IPR after losing in the courts. The Board found the claims-in-suit to be obvious. The Federal Circuit affirmed that the courts and the PTAB could reach different conclusions about patentability.
After Novartis’ patents were found nonobvious by the Fed. Cir., affirming the Delaware District Court, defendant Noven filed for inter partes review (IPR) of U.S. Pat. Nos. 6316023 and 6335031, on rivastigmine and an antioxidant. The PTAB found the asserted claims obvious and Novartis appealed to the Fed. Cir., that affirmed (Novartis AG, LTS v. Noven Pharmaceuticals Inc., Appeal Nos. 2016-1678, 2016-1679 (Fed. Cir., April 4, 2017)). Continue reading
Last week Docket Navigator delivered a troubling headline regarding a recent District Court decision – “Invalidity Opinion Delivered After Product Launch No Defense to Willful Infringement.” As a practitioner who regularly drafts non-infringement and invalidity opinions, this sort of headline tends to catch your attention; especially after the Supreme Court appeared to breath new life into opinion practice with the Halo decision (Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.Ct. 1923 (2016)). The Halo decision rejected the Seagate two-part test that had controlled enhanced damages since the Federal Circuit handed down the en banc decision in 2007 (In re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007)(en banc)). So, are the courts already trying to break the Halo? Continue reading
The ABA-IPL Section sent proposed amendments to PTO Director Lee intended to lessen the burden on patent applicants encountering the Mayo/Alice Rules for patent-eligible subject matter. The proposed amendments list exceptions to eligibility. The exceptions are that the claims would preempt the use by others of all practical applications of a law of nature [ed. note: Including natural products?], natural phenomenon [ed. note: correlations between biomarkers and disease states?], or abstract idea. Continue reading