Chromadex v. Elysium Health – It’s Only Natural!

On February 13, 2023, a Fed. Cir. panel of Judges Prost, Chen and Stoll (Prost writing) held, in Appeal no. 2022-1116, that the asserted claims 1-3 of U.S. Patent No. 8,197, 807 are directed to unpatentable subject matter, namely to a natural product, nicotinamide riboside (“NR”). Since the panel relied heavily on its opinion in Natural Alternatives International, Inc. v. Creative Compounds, LLC., 918 F.3d 1338 (Fed. Cir, March 15, 2019), it would be helpful to read my post of March 18, 2019. With respect to the composition claims in suit in Natural Alternatives, claim 6 of U.S. Patent No. 7,504,376 depended from claim 1, a claim that almost certainly would have been found patent ineligible. It recited a “naked” composition comprising a simple mixture of two natural products, glycine and beta-alanine, its esters and amides, and beta-alanine di-peptide and another dipeptide.

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“Inequitable Conduct: Refresher and Update” Panel on March 16

I will be on a panel,  “Inequitable Conduct: Refresher and Update,” with Danny Huntington of Rothwell Figg and William Covey of the PTO OED. The panel will take place on Thursday, March 16 at the 2023 IPOwners Spring SummitTM in Washington, DC. This one-day IPO conference addresses topics relevant for in-house IP attorneys and will also be useful for outside counsel. The summit includes networking opportunities on March 16 and a welcome reception the prior evening. You can find more info at: 2023 IPOwners Spring Summit™ – Intellectual Property Owners Association.


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PTO Expands the Scope of the Immunotherapy Pilot Program

The PTO’s Cancer Immunotherapy Pilot Project, begun in 2016, has been deemed a success. It permitted an applicant claiming a method to treat cancer using immunotherapy to file a petition to accelerate issuance of the first Examination Report. When the program expires, on Jan. 31st, it will be replaced by a structurally similar program entitled “the Cancer Moonshot Expedited Examination Pilot Program” which will broaden the scope of qualifying technologies, to include certain product or apparatus “use” claims.  87 C.F.R. 75608, Dec. 9th 2022.

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Moderna to Pfizer: “The Pandemic is Over”

On August 26th, Modernatx, Inc. and Moderna US, Inc. sued Pfizer and Biontech SE,  (Case 1:22-cv-11378 [D. Mass.]) for treble damages and attorney’s fees related to the alleged direct or indirect infringement of three of Moderna’s patents with claims directed to the mRNA vaccines developed by Moderna to prevent or lessen the symptoms of COVID-19 infections. The patents in suit are U.S. Pat. Nos. 10,898,574; 10,702,600 and 10,933,127. Claim 2 of the ‘574 patent is directed to lipid nanoparticles comprising an mRNA encoding a polypeptide, wherein the mRNA comprises one or more uridines, where substantially all of the uridines are modified. This is my compressed version of this patent claim, since the events leading to filing this suit are more interesting at this stage.

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