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Category: Federal Circuit
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By Donald Zuhn — With oral argument in Association for Molecular Pathology v. U.S. Patent and Trademark Office ("Myriad") less than two weeks away, Patent Docs continues its examination of some of the twenty-three amicus briefs that have been filed in this case. Today, we look at the amicus brief filed by the Intellectual Property…
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By Andrew Williams — On Monday, in Sciele Pharma Inc. v. Lupin Ltd., the Federal Circuit vacated a preliminary injunction against ANDA-filer Lupin that blocked its sale of generic Fortamet, and remanded the case to the District Court for the District of Delaware for further processing. In so doing, the Federal Circuit reiterated the holding…
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By Kevin E. Noonan — We are living in an age of retrenchment with regard to patent law, where thirty years of Federal Circuit precedent, from the court created by Congress to harmonize U.S. patent law to great public benefit, is being reconsidered by the inconstant, almost fickle attention of the U.S. Supreme Court. This…
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By Kevin E. Noonan — The deadline for filing "supplemental briefs" in Association for Molecular Pathology v. U.S. Patent and Trademark Office ("the Myriad case") was Friday, and in addition to Appellants Myriad (Supplemental Brief for Appellant (Myriad)) and Appellees represented by the ACLU and Public Patent Foundation (here), more than a dozen amicus curiae…
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By Kevin E. Noonan — The Federal Circuit today denied Defendant Myriad Genetics' motion, styled as "Appellant's Suggestion of Mootness, or, in the Alternative, Motion to Remand," seeking to reopen the question of whether Dr. Harry Ostrer continues to have standing to bring the lawsuit (see "Myriad Files Motion 'Suggesting' Mootness or Seeking Remand in…
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By Kevin E. Noonan — On May 30th, Myriad Genetics filed a motion in the remand of Association for Molecular Pathology v. U.S. Patent and Trademark Office case ("Myriad") to the Federal Circuit, styled "Appellant's Suggestion of Mootness, or, in the alternative, Motion to Remand," to address the fundamental question of whether the Federal Circuit,…
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By Kevin E. Noonan — One of the interesting and unresolved issues in the Association for Molecular Pathology v. U.S. Patent and Trademark Office case ("Myriad") involves whether the Federal Circuit, or any U.S. court, has jurisdiction to hear the case. This issue is based on the Federal Circuit's determination, in its now-vacated decision in…
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By Kevin E. Noonan — In a dissent from the Federal Circuit's affirmance of a Board determination of obviousness, Judge Newman raises a jurisdictional and separation-of-powers argument in In re Baxter International, Inc. that is destined to be decided by the Supreme Court. Specifically, what power does the U.S. Patent and Trademark Office have to…
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By Kevin E. Noonan — In an otherwise unremarkable case of a PTO rejection based on anticipation, Judges Dyk and Lourie engaged in an interesting colloquy on the proper interpretation of what constitutes inherent anticipation, in In re Montgomery. The case involved claims to methods for "treating or preventing" stroke, using "renin-angiotensin system (RAS)" inhibitors,…
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By Kevin E. Noonan — The Federal Circuit reversed a finding of obviousness in Eurand Inc. v. Mylan Pharmaceuticals Inc. (under the caption In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litigation), taking the occasion to expound on both the proper consideration of the evidence proffered to support an obviousness determination as well as the evidentiary…
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