Patent Law Weblog
recent posts
- REGENEXBIO Inc. v. Sarepta Therapeutics, Inc. (Fed. Cir. 2026)
- Apple v. Squires: USPTO Director Has Unlimited Discretion on IPR Institution
- The Ghost in the Machine: Why GenAI Can Be Both a Brilliant Researcher and a Terrible Advocate
- Bayer Files Suit Against Trio of COVID-19 Vaccine Makers
- Allen v. Cooper (4th Cir. 2026)
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Category: Federal Circuit
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By Kevin E. Noonan — Recently, the Federal Circuit has taken up issues relating to infringement under the doctrine of equivalents (DOE) and a related doctrine, prosecution history estoppel (PHE), that limits the scope of equivalents that can be asserted under DOE. See, e.g., Pharma Tech Solutions, Inc. v. Lifescan, Inc.; Amgen Inc. v. Coherus…
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By Kevin E. Noonan — The latest Federal Circuit decision on subject matter eligibility in the life sciences came down (by a divided court) in favor of eligibility, in Illumina, Inc. v. Ariosa Diagnostics, Inc. The claims at issue fell into the third "bucket" of eligibility, being neither diagnostic method claims (always ineligible at the…
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By Donald Zuhn — Last month, in Serta Simmons Bedding, LLC v. Casper Sleep Inc., the Federal Circuit vacated a decision by the U.S. District Court for the Southern District of New York granting summary judgment of non-infringement to Defendant-Cross-Appellant Casper Sleep Inc. and remanded with instructions to enforce a settlement agreement between Casper and…
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By Donald Zuhn — On Tuesday, the Federal Circuit issued a per curiam Order in NZNP Finance Ltd. v. Actavis Laboratories UT, Inc., denying a petition for rehearing en banc filed by Plaintiffs-Appellants HZNP Finance Ltd. and Horizon Therapeutics USA, Inc. The Court also denied Plaintiffs-Appellants a panel rehearing. Circuit Judge Lourie, joined by Circuit…
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By Kevin E. Noonan — The patent marking statute, codified at 35 U.S.C. § 287(a) appears straightforward: Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same…
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By Kevin E. Noonan — Expert witness testimony is a frequent (almost ubiquitous) feature of patent litigation, if only because questions of the state of the art or the understanding of one having ordinary skill in the art are almost always at issue for claim construction, infringement, and invalidity issues. In HVLPO2, LLC v. Oxygen…
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By Donald Zuhn –- Last week, the Federal Circuit issued a per curiam Order in BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., denying a petition for a panel rehearing or rehearing en banc filed by Appellant BioDelivery Sciences International, Inc. Judge Newman dissented from the denial of the petition for rehearing en banc. The…
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By Kevin E. Noonan — Last week, the Federal Circuit affirmed invalidation of claims to methods for reducing Protein A leaching in affinity column chromatographic methods important inter alia in purifying monoclonal antibodies, in Genentech, Inc. v. Hospira, Inc. In doing so, the panel majority (over a dissent by Judge Newman) illustrated anew the importance…
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By Kevin E. Noonan — It seems that memes can be as compelling in the law as in social media, and the meme of the moment in patent law is inherency, particularly as applied to obviousness determinations (see, for example, Persion Pharmaceuticals LLC v. Alvogen Malta Operations Ltd.; Acorda Therapeutics, Inc. v. Roxane Labs., Inc.). …
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By Kevin E. Noonan — Transitional terms in patent law (conventionally, "comprising," "consisting of," and the more arcane "consisting essentially of") have their own provenance and meaning, denoting limitations that are "open" (comprising) or "closed" (consisting). But how should a court construe instances where these terms seem to be at odds with one another? The…
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