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Category: Claim Construction
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By Kevin E. Noonan — There are more issues in patent law that the Supreme Court may consider than those raised by Association for Molecular Pathology v. Myriad Genetics, and as if to illustrate that point, the Solicitor General filed his brief at the end of November in Retractable Techs., Inc. v. Becton, Dickinson & Co. …
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By Kevin E. Noonan — In a decision ripe for Supreme Court review (appropriately, this time), a fractured Federal Circuit delivered a plurality opinion in Marine Polymer Technologies, Inc. v. Hemcon, Inc. (Fed. Cir. 2012) (en banc). The case revealed a deep division between judges taking a strict constructionist view of the patent statute (in…
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By Christopher Bond — In Ranbaxy (UK) Ltd v AstraZeneca AB, the England and Wales High Court considered the scope of "Swiss" medical use claims. This important decision clarifies how these types of claims can be infringed. Background: "Swiss" Claims The European Patent Convention (EPC) expressly excludes methods of treatment from being patentable. The reason…
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By Kevin E. Noonan — Sometimes it is what a court doesn't do that points to what needs to be done. That appears to be the case for claim construction and the Federal Circuit's standard, since Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998), that the appellate court should review claim…
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By Kevin E. Noonan — Judge Giles Sutherland Rich famously said that, in patent law, "the name of the game is the claim." One of the weaknesses in the "gene patenting" debate, as well as in the District Court's opinion in AMP v. USPTO (the Myriad case), is the lack of clarity about the scope…
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By Donald Zuhn — In Adams Respiratory Therapeutics, Inc. v. Perrigo Co., decided last Thursday, the Federal Circuit vacated and remanded a determination by the District Court for the Western District of Michigan that the guaifenesin product described in Defendants-Appellees' ("Perrigo") Abbreviated New Drug Application (ANDA) would not infringe the asserted claims of Plaintiffs-Appellants' ("Adams")…
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Claim Construction of DNA-reciting Claims By Kevin E. Noonan — The Federal Circuit considered claims to isolated DNA sequences encoding portions of the genome of a porcine circovirus in Intervet Inc. v. Merial Ltd. last week, remanding the case to the District Court based on disagreements with the lower court's construction of three claim terms. …
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By Andrew Williams — Last week, in Scantibodies Laboratory, Inc. v. Immutopics, Inc., the Federal Circuit affirmed a claim construction decision and corresponding summary judgment of non-infringement rendered by the U.S. District Court for the Central District of California. The patent at issue was U.S. Patent No. 6,689,566 ("the '566 patent"), "Methods, Kits, and…
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By Kevin E. Noonan — It is a bedrock principle of patent practice that the U.S. Patent and Trademark Office gives the terms of claims under examination their broadest reasonable construction. The rationale is that, in this way, the applicant has the opportunity to argue or amend the claims to be as broad as…
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By Kevin E. Noonan — The Federal Circuit waded into the question of patent ownership in a dispute between a patent attorney and Applera-Applied Biosystems over patents involving nucleic acid sequencing technology in Applera Corp. v. Illumina, Inc. The case is unusual in at least three respects: the inventor is a lawyer, not a…
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