Patent Docs

PTAB Finally Proposes Rule Amendments: The More Things Change . . .

August 19, 2015

By Andrew Williams —

More than a year ago, then-Deputy Director Michelle K. Lee posted on the Director's Forum Blog that the USPTO was seeking feedback on PTAB trial proceedings established by the Leahy-Smith America Invents Act ("AIA") (see "Deputy Directory Lee Announces the Request for Written Comments to Help Improve PTAB Proceedings"). The Office outlined 17 issues, or questions, on which it was most interested in receiving public comments. On May 19, 2015, the Office published a first "Final Rules" package of amendments that were described as being more ministerial in nature (see "Final 'Ministerial' Rule Amendments for Practice Before the PTAB"). Today, current Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee announced on her blog that the second rules package would be introduced in the form of a Notice of Proposed Rulemaking, which will publish in the Federal Register on August 20, 2015. These proposed rules, however, are currently available here. She also asked that comments to these proposed rules be submitted by October 19, 2015.

The one thing that is striking after reviewing the questions and issues for which comments were requested, the actual comments (at least as abstracted by the Office) and the responses from the Office, is how little will actually change. In fact, the most common response to all of the comments was that the Office is satisfied with things as they are, whether through the original promulgated rules or through the evolution of procedures and practice via the issuance of final written decisions or other opinions by the Board. This was certainly not because the large majority of comments were wholly positive — indeed, the comments suggesting that no change be made were few and far between. Instead, most comments were constructive, providing feedback in the areas in which stakeholders believed change was needed. Nevertheless, almost all of the comments about the Board were positive in the approach that it was taking — seeking feedback from the community and being as deliberate in developing a framework for these relatively new proceedings. Still, it would have been nice to see a few more suggestions or comments adopted.

Patent Owner Preliminary Response

This is not to say that there are no changes being proposed — to the contrary, there are some significant changes to which all practitioners will need to pay attention. Probably the biggest shift is the allowance of new testimonial evidence to accompany a Patent Owner Preliminary Response. To prevent the pendulum from swinging too far to the patent owner's advantage (if that is even possible), the Board is also proposing that petitioners may seek leave to file a reply to the preliminary response. This will of course alleviate or lessen the concern of patent owners attempting to avoid institution in the first place. However, it will come at a cost of potentially front-loading the proceedings with preliminary filings. The proposed text for the IPR section of the CFR reads as follows (with roughly equivalent language proposed for the PGR proceedings):

§ 42.107 Preliminary response to petition
    (a) The patent owner may file a preliminary response to the petition. The response may set forth the reason why no inter partes review should be instituted under 35 U.S.C. 314 and can include supporting evidence. The preliminary response is subject to the word count under § 42.24.

* * *

    (c) [Reserved]

* * *

§ 42.108 Institution of inter partes review.

* * *

    (c) Sufficient grounds. Inter partes review shall not be instituted for a ground of unpatentability unless the Board decides that the petition supporting the ground would demonstrate that there is a reasonable likelihood that at least one of the claims challenged in the petition is unpatentable. The Board's decision will take into account a patent owner preliminary response where such a response is filed, but supporting evidence concerning disputed material will be viewed in the light most favorable to the petitioner for purposes of deciding whether to institute an inter partes review. If the patent owner submits supporting evidence with its preliminary response, the petitioner may seek leave to file a reply to the preliminary response in accordance with § 42.24(c).

Word Count

Another proposal that has the potential to cause a significant change is the switch from page limits for certain papers to limitations on word count (as can be observed in the above-proposed language). Specifically, the Board is proposing to implement a word count limitation for petitions, patent owner preliminary responses, patent owner responses, and petitioner's replies. The rationale provided is to cut down or avoid abuses of page count limits by manipulating claim charts. In fact, the Office suggested that this change will streamline administrative review and reduce the number of non-compliant petitions requiring correction. In other words, petitioners will now be able to include arguments in claim charts, as it will still count in word count limitations. The specific amendments to 37 C.F.R. § 42.24 are:

• Petition requesting inter partes review: 14,000 words.
• Petition requesting post-grant review: 18,700 words.
• Petition requesting covered business method patent review: 18,700 words.
• Petition requesting derivation proceedings: 14,000 words.
• The word counts for a patent owner preliminary response to a petition are the same as the word count for the petition.
• The word counts for a patent owner response to petition are the same as the word counts for the petition.
• Replies to patent owner responses to petitions: 5,600 words.

Oral Hearing

The Office is proposing to require at least seven days before oral argument for exchange of exhibits, as opposed to five, to provide additional time for the parties to resolve disputes.

Rule 11-Type Certification

The Office is proposing the addition of a certification requirement that would mirror that of Rule 11 for Federal district court litigation. This would revise Section 42.11 to include a requirement for representations to the Board, and would provide for sanctions for violating this requirement. In some ways, such a requirement has always existed for attorneys because they are beholden to the Office of Enrollment and Discipline. But this proposed rule, and proposed penalty, would go above and beyond the ethical requirements. Specifically, the new section will read:

§ 42.11 Duty of candor; signing papers; representations to the Board; sanctions.
    (a) Duty of candor. Parties and individuals involved in the proceeding have a duty of candor and good faith to the Office during the course of a proceeding.
    (b) Signature. Every petition, response, written motion, and other paper filed in a proceeding must be signed by at least lead counsel or designated backup counsel under § 42.10 in the attorney's or registered practitioner's name–or by a party personally if the party is unrepresented. The Board may expunge any unsigned submission unless the omission is promptly corrected after being called to the counsel's or party's attention.
    (c) Representations to the Board. By presenting to the Board a petition, response, written motion, or other paper–whether by signing, filing submitting, or later advocating it–an attorney, registered practitioner, or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
        (1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceeding;
        (2) The claims, defenses, and other legal contentions are warranted by existing law or be a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
        (3) The factual contentions have evidentiary support; and
        (4) The denials of factual contentions are warranted on the evidence.
    (d) Sanctions – – (1) In general. If, after notice and a reasonable opportunity to respond, the Board determines that paragraph (c) of this section has been violated, the Board may impose an appropriate sanction on any attorney, registered practitioner, law firm, patent agent, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
        (2) Motion for sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates paragraph (c) of this section. The motion must be authorized by the Board under § 42.20. Prior to seeking authorization to file a motion for sanctions, the moving party must provide written notice to the other party of the basis for the proposed motion. A motion for sanctions must not be filed or be presented to the Board if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service of such notice or within another time the Board sets. If warranted, the Board may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
        (3) On the Board's initiative. On its own, the Board may order an attorney, registered practitioner, law firm, or party to show cause why conduct specifically described in the order has not violated paragraph (c) of this section.
        (4) Nature of a sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated and should be consistent with § 42.12.
        (5) Requirement for an order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
    (e) Inapplicability to discovery. This rule does not apply to disclosures and discovery requests, responses, and objections.

Claim Construction Standard

Finally, the Board is proposing a change to the Broadest Reasonable Interpretation standard for construing claims, but it is not the change that most of us were hoping for. In fact, the Board affirmed the use of the BRI standard in all but the most limited circumstances. Curiously, instead of responding to the comments that pointed out the BRI was contrary to the intent of Congress, the Board relied heavily on the In re Cuozzo case. In that case, the Federal Circuit found that Congress "implicitly approved" of the BRI standard in enacting the AIA. However, the Court went on to conclude that Congress authorized the Patent Office to prescribe its own regulations, including the claim construction standard. Therefore, reliance on Cuozzo is curious, because that case could easily be read as permitting the Patent Office to adopt a different standard at this time.

Nevertheless, no sweeping changes were proposed. Instead, the Board responded to a comment that the rules should be changed such that the BRI standard would not apply to claims that will expire before a final written decision is issued. Now, the various rules will read: "A claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears."

We will provide additional commentary on the proposed rules and the Director's blog post in the upcoming days, and we will of course monitor any developments and report on them as warranted.
Sequenom Requests Rehearing En Banc

August 18, 2015

By Donald Zuhn —

Earlier this summer, in Ariosa Diagnostics, Inc. v. Sequenom, Inc., the Federal Circuit affirmed a decision by the District Court for the Northern District of California granting summary judgment of invalidity of the asserted claims of U.S. Patent No. 6,258,540 (see "Ariosa Diagnostics, Inc. v. Sequenom, Inc. (Fed. Cir. 2015)"). Last week, Sequenom filed a petition for rehearing en banc, arguing that the panel's decision in June was inconsistent with the Supreme Court's decisions in Diamond v. Diehr, 450 U.S. 175 (1981), Mayo v. Prometheus Laboratories, 132 S. Ct. 1289 (2012), and Association for Molecular Pathology v. Myriad Genetics, 133 S. Ct. 2107 (2013, and that the panel's decision poses a threat to patent protection in multiple fields of invention.

Sequenom begins by asserting that the panel's decision raises the following question of exceptional importance:

Is a novel method patent-eligible under §101 where: (1) a researcher is the first to discover a natural phenomenon; (2) that unique knowledge motivates her to apply a new combination of previously known techniques to the phenomenon; and (3) she thereby achieves a previously unknown and impossible result?

According to Sequenom:

The panel decision in this case reads recent Supreme Court precedent to create an existential threat to patent protection for an array of meritorious inventions. It avowedly holds that "groundbreaking" new diagnostic methods that "make[] a significant contribution to the medical field" are ineligible for a patent whenever they (1) incorporate the discovery of a natural phenomenon, and (2) the techniques involved in putting that discovery to its first practical use were individually known beforehand. See Op. 10, 16. In other words, the person who first discovers a natural phenomenon can never obtain a patent on any practical application of that new knowledge, however surprising or revolutionary the results, unless the steps she teaches to use it are independently novel.

Sequenom notes that although the individual techniques involved in the claimed methods were known, "no one had been practicing them in the combination disclosed in the patent," and moreover, that "the material the patent taught the world how to test had previously been discarded as waste" (emphasis in petition).

As discussed in the petition, the inventors (Drs. Dennis Lo and James Wainscoat) discovered that cell-free fetal DNA (cffDNA) was circulating in the blood of pregnant mothers, and that this knowledge could be used to create a maternal blood test for certain fetal genetic traits and abnormalities. The petition states that the discovery of cffDNA in maternal blood "was a profound breakthrough," noting that "their Lancet article describing it has since been cited about a thousand times." As for the claimed invention, Sequenom states that:

The patent specifically claimed a method of (1) fractionating a pregnant mother's blood, (2) amplifying the genetic material in the serum/plasma, and (3) identifying paternally inherited material as a means of testing for fetal characteristics or medical conditions. It is undisputed that no one was previously practicing these steps in combination because they were in fact discarding the relevant materials as waste. The techniques involved were known, but their combination as taught in the ’540 patent was anything but conventional; indeed, the convention was essentially the opposite [internal citations omitted].

However, the Federal Circuit panel that heard the appeal (Circuit Judges Reyna, Linn, and Wallach) determined that the asserted claims failed the two-step test for patent eligibility set forth in Mayo. According to Sequenom:

The panel's core reasoning was that, "[f]or process claims that encompass natural phenomenon, the process steps . . . must be new and useful." And because researchers already knew how to (1) fractionate blood; (2) amplify DNA in serum or plasma; and (3) detect characteristics in amplified DNA, the method impermissibly added only "well-understood, routine, and conventional activity" to the natural phenomenon Lo and Wainscoat discovered [internal citations omitted].

In arguing for rehearing en banc, Sequenom contends that:

The panel's decision misinterprets Mayo both by failing to read that decision in light of the key Supreme Court precedent that Mayo endorses and by reaching a result the Supreme Court has twice disavowed in recent opinions. Neither Mayo's holding, nor even its dicta, compel the panel's conclusion — a conclusion that threatens dire consequences for biomedicine as a field and patent law as a whole.

In the first of two reasons why the Federal Circuit should grant rehearing en banc, Sequenom argues that "[t]he panel's decision misinterprets Mayo by ignoring Diehr and Myriad to reach a consequence that Mayo quite clearly did not intend." With respect to Diehr, Sequenom notes that each of the techniques recited in the claimed method was already known and practiced, but they were not practiced in combination. Sequenom argues that the claimed method in the '540 patent "is just like that in Diehr, and not at all like that in Mayo," adding that "[t]he natural phenomenon Drs. Lo and Wainscoat discovered motivated them to teach a new method that no one was practicing, and whose combined steps were in fact the opposite of the 'conventional' approach, even if each individual technique involved was 'well-understood' on its own" (emphasis in petition). Sequenom also argues that:

[T]he panel's difficulty in reconciling existing Supreme Court precedent is reflected in the fact that its ruling does not even mention Diehr, and — perhaps more importantly — makes no effort at all to address whether the combination of steps taught in the '540 patent was "routine" activity at the time of the patent. This is accordingly the simplest basis on which the full Court can intervene to prevent the bizarre result of "excluding a meritorious invention from the patent protection it deserves" based on an over-reading of Mayo that will take many other deserving inventions down with it [emphasis in petition].

While asserting that "Mayo clearly suggested that 'a new way of using an existing drug' would be eligible for patent protection under §101," Sequenom observes that "under the panel's test, that cannot be true: The drug is known, the means of administering it are known, and the only new insight is the (unpatentable) natural law that the drug treats a disease no one previously knew it treated." According to Sequenom, "[t]he test Diehr sets out solves this problem by showing exactly why such applications remain perfectly patentable — they would in combination be non-routine and non-conventional uses of known techniques to accomplish new results that are motivated by an insight about the natural world."

As for the second reason why the Federal Circuit should grant rehearing en banc, Sequenom states that:

The full Court's intervention is particularly necessary because, if this Court does not step in and draw this line, the panel's rule threatens to swallow many more meritorious inventions along with this one. The core of nearly every major innovation is the discovery of a fact about the natural world that motivates inventors to combine existing techniques to achieve new practical results.

Sequenom also argues that "the problem goes well beyond diagnostics or even medicine: If combining conventional techniques in an unconventional fashion, motivated by a discovery about nature’s laws, is unpatentable subject matter, it is hard to see how any process claim can survive" (emphasis in petition). The petition also suggests that following the panel decision, the only way protect a "field-changing invention" like that of the '540 patent will be to keep it a secret for as long as possible, which Sequenom contends "benefits no one, especially in fields like medicine where collaborative sharing of basic research is so fundamental to progress and the timely development of life-saving interventions." Gazing into the crystal ball, Sequenom suggests that:

[T]hose seeking new vaccines, new uses for existing drugs, new noninvasive tests, or other biomedical innovations will quite likely conclude that the game is no longer worth the candle. And who could blame them: They could revolutionize their field, teach their colleagues a method that is the diametric opposite of the conventional wisdom, create a practical test that confers enormous medical benefits on society, have their research cited close to a thousand times, and yet still be denied a patent because their previously unknown method relies on too fundamental a discovery they made about the natural world [emphasis in petition].

Sequenom argues that "[n]othing requires this anomalous result," adding that "[t]his patent is radically different from those recently rejected under §101 because it claims a combination of steps that no one in the field was previously practicing and does not purport to (and did not in fact) preempt all uses of the natural discovery that motivated it" (emphasis in petition). Sequenom concludes by stating that "[t]he full Court should take this opportunity to protect patent law's fundamental principles from being eroded by results neither the Supreme Court nor Congress could possibly have intended."
IPO Files Amicus Brief in Immersion Corp. v. HTC Corp.

August 17, 2015

By Donald Zuhn —

Last week, in Immersion Corp. v. HTC Corp., the Intellectual Property Owners Association (IPO) filed a brief as amicus curiae in support of Plaintiff-Appellant Immersion Corp. In that case, the District Court for the District of Delaware construed 35 U.S.C. § 120 to prohibit filing a continuation application on the day its immediate parent granted, contrary to established U.S. Patent and Trademark Office practice. The District Court also refused to grant the Office any deference in the matter.

In its brief, the IPO asserts that the Federal Circuit "should hold that continuations that are filed on the day that the parent patent issues should be able to claim priority to the parent application's priority date." In support of this assertion, the IPO argues that the District Court's decision contravened more than 150 years of patent practice tracing back to the 1863 Supreme Court case of Godfrey v. Eames, notes that another District Court reached the opposite conclusion, and points out that the Office has consistently interpreted § 120 to permit continuations that are filed on the same day that a parent patent issues. The IPO also argues that Office's interpretation is entitled to deference. Finally, the IPO concludes by providing an idea of the impact the District Court's decision will have on patentees if allowed to stand.

With regard to Godfrey, the IPO notes that the case involved a patent that issued from a second application that was filed on the same day that the first application was withdrawn by the patentee. The defendant argued that by the second application lost entitlement to the first application's priority date. However, the Supreme Court disagreed, holding that "if a party choose to withdraw his application for a patent . . . intending at the time of such withdrawal to file a new petition, and he accordingly do so, the two petitions are to be considered as parts of the same transaction, and both as constituting one continuous application, within the meaning of the law." The IPO concludes that "per the rule in Godfrey, a continuation filed on the same day as its parent application's withdrawal is entitled to the parent's priority date." The IPO also argues that:

Under the Godfrey rule, an application filed on the same day as its parent application's withdrawal constitutes a "continuous" application entitled to the parent's priority date. Therefore, § 120 should be interpreted in a similar manner for patented applications such that a continuation application can claim priority if it is filed on the same day that its parent application issues as a patent.

In support of this argument, the IPO notes that "the legislative history [concerning § 120] says nothing about overruling Godfrey or changing its rule that allows continuation applications to be filed on the same day that the parent application is withdrawn or matures into a patent."

The IPO also notes that "the only other district court to address the specific issue presented in this case has held that a continuation application can be filed on the day that the parent application issues as a patent without a loss of priority." According to the IPO, that other court, the District Court for the Western District of Wisconsin, decided in MOAEC, Inc. v. MusicIP Corp., 568 F. Supp. 2d 978 (W.D. Wis. 2008), "that the same day filing satisfied the 'copendency requirement' of § 120 because the Patent Office has consistently defined 'before' to mean 'not later than.'"

As for the Office's interpretation of § 120, the IPO points out that the Office's guidance regarding copendency can be found in M.P.E.P. § 211.01(b)(I), which states:

Copendency is defined in the clause which requires that the later-filed application must be filed before: (A) the patenting of the prior application; (B) the abandonment of the prior application; or (C) the termination of proceedings in the prior application. If the prior application issues as a patent, it is sufficient for the later-filed application to be copending with it if the later-filed application is filed on the same date, or before the date that the patent issues on the prior application [emphasis added in IPO brief].

The IPO argues that the above interpretation is entitled to deference, contrary to the Delaware District Court's determination, explaining that:

The district court's holding that no Chevron deference is due requires one to adopt faulty logic, namely, that the statute requires action 'before' a given instant in time when that moment in time is not necessarily ascertainable. Indeed, the statute and the regulations are silent about the precise time when a patent application is considered to issue. Thus, there is ambiguity as to when a patent application must be filed to be 'before' a patent issues on the parent application.

The IPO explains further that "'patenting' could occur on the issue date when the clock strikes twelve o'clock in the morning, when the Patent Office opens, when the patentee is first sent a copy of the issued patent, when the patent is published in the Official Gazette, or at any other time on the issue date," and further that "a continuation application could be filed a day, a minute, a second, or even a fraction of a second before the patent issues (whenever that is deemed to be) and still be filed 'before' patenting." The IPO argues that "[g]iven the large potential for confusion caused by the statute's reference to 'before' and the various alternatives for when 'patenting' could occur, the Patent Office's decision to interpret 'before' to mean 'not later than,' see M.P.E.P. § 711.02(c), is eminently reasonable."

In discussing the impact of the Delaware District Court's decision, the IPO indicates that it is "concerned that the district court's decision in this case will have the effect of divesting patentees of valuable rights to which, but for the change in law effected by the district court, they are entitled." In quantifying this impact, the IPO notes that an analysis conducted at the IPO's request by Ocean Tomo determined that "as of May 1, 2015, of the 1,474,712 in-force patents that resulted from continuation applications, fully 12,300 have a filing date that is the same as the issue date of the parent." The IPO also notes that this figure is conservative in that it does not take into account patents that resulted from parent applications that were abandoned or terminated on the day that the patent application was filed or that had an ancestor filed on the same day its parent was issued, abandoned, or terminated. According to Ocean Tomo, an estimated 30,000 additional patents could fall into these latter categories.

The IPO brief concludes by stating that:

Amicus Curiae's members and others have relied on an interpretation of § 120 that is at odds with the district court's decision under review. If the Court were to affirm that decision, it would call into question the validity of a sizable number of issued patents — patents that were prosecuted in a manner consistent with Patent Office practice and Supreme Court precedent dating back over 150 years. There is no reasonable justification for (and no countervailing benefits supporting) such a capricious, harmful departure from long-standing practice.
Court Report

August 16, 2015

By Sherri Oslick —

About Court Report: Each week we will report briefly on recently filed biotech and pharma cases.

Eli Lilly and Company et al. v. Lupin Pharmaceuticals, Inc. et al.
1:15-cv-01047; filed July 6, 2015 in the Southern District of Indiana

• Plaintiffs: Eli Lilly and Company; Eli Lilly Export S.A.; Acrux DDS Pty Ltd.
• Defendants: Lupin Pharmaceuticals, Inc.; Lupin Ltd.

Infringement of U.S. Patent Nos. 8,435,944 ("Method and Composition for Transdermal Drug Delivery," issued May 7, 2013), 8,419,307 ("Spreading Implement," issued April 16, 2013), 8,177,449 (same title, issued May 15, 2012), 8,807,861 (same title, issued August 19, 2014), and 8,993,520 ("Method and Composition for Transdermal Drug Delivery," issued March 31, 2015) following a Paragraph IV certification as part of Lupin's filing of an ANDA to manufacture a generic version of Eli Lilly's Axiron® (testosterone metered transdermal solution, used to treat males for conditions associated with a deficiency or absence of endogenous testosterone). View the complaint here.

Gilead Sciences, Inc. et al. v. Lupin Pharmaceuticals, Inc. et al.
1:15-cv-01956; filed July 1, 2015 in the District Court of Maryland

• Plaintiffs: Gilead Sciences, Inc.; Hoffmann-LaRoche Inc.; F. Hoffmann-LaRoche Ltd.; Genentech, Inc.
• Defendants: Lupin Pharmaceuticals, Inc.; Lupin Atlantis Holdings S.A.; Lupin Ltd.

Infringement of U.S. Patent No. 5,763,483 ("Carbocyclic Compounds," issued June 9, 1998) following a Paragraph IV certification as part of Lupin's filing of an ANDA to manufacture a generic version of Genentech's Tamiflu® (oseltamivir phosphate, used to treat uncomplicated acute illness due to influenza infection in patients one year or older who have been symptomatic for no more than two days and for the prophylaxis of influenza in patients one year or older). View the complaint here.

Erfindergemeinschaft UroPep GbR v. Eli Lilly and Company et al.
2:15-cv-01202; filed July 1, 2015 in the Eastern District of Texas

• Plaintiff: Erfindergemeinschaft UroPep GbR
• Defendants: Eli Lilly and Company; Brookshire Brothers Inc.

Infringement of U.S. Patent No. 8,791,124 ("Use of Phosphodiesterase Inhibitors in the Treatment of Prostatic Diseases," issued July 29, 2014) based on Lilly's manufacture and sale of its Cialis® product (tadalafil) for the treatment of benign prostatic hyperplasia (BPH). View the complaint here.

Salix Pharmaceuticals, Inc. et al. v. Mylan Pharmaceuticals, Inc. et al.
1:15-cv-00109; filed June 26, 2015 in the Northern District of West Virginia

• Plaintiffs: Salix Pharmaceuticals, Inc.; Dr. Falk Pharma GmbH;
• Defendants: Mylan Pharmaceuticals, Inc.; Mylan, Inc.; Mylan, Inc.

Infringement of U.S. Patent Nos. 6,551,620 ("Pellet Formulation for the Treatment of the Intestinal Tract," issued April 22, 2003), 8,337,886 (same title, issued December 25, 2012), 8,496,965 (same title, issued July 30, 2013), and 8,865,688 ("Compositions and Methods For Treatment of Bowel Diseases With Granulated Mesalamine," issued October 21, 2014) following a paragraph IV certification as part of Mylan's filing of an ANDA to manufacture a generic version of Salix's Apriso® (mesalamine, used for the maintenance of remission of ulcerative colitis in adults). View the complaint here.
Conference & CLE Calendar

August 16, 2015

August 20, 2015 – "Inducement to Infringe in Patent Litigation: Protecting IP Rights — Lessons from Commil USA v. Cisco Sys. Inc. and Leveraging Opinions of Counsel" (Strafford) – 1:00 to 2:30 pm (EDT)

August 24, 2015 – Roadshow on Patent Quality and AIA Trials (American Intellectual Property Law Association and U.S. Patent and Trademark Office) – Santa Clara, CA

August 26, 2015 – Roadshow on Patent Quality and AIA Trials (American Intellectual Property Law Association and U.S. Patent and Trademark Office) – Dallas, TX

August 27, 2015 – "Meet the New Boss. Same as the Old Boss? Not Even Close under New Mayo/Alice Regime for § 101" (McDonnell Boehnen Hulbert & Berghoff LLP) – 10:00 am to 11:15 am (CT)

August 27, 2015 – "Biosimilars: Regulation, Litigation and New Developments Patent Practitioners and Regulatory Attorneys Should Know" (American Intellectual Property Law Association) – 12:30 – 2:00 pm (Eastern)

August 28, 2015 – Roadshow on Patent Quality and AIA Trials (American Intellectual Property Law Association and U.S. Patent and Trademark Office) – Alexandria, VA

September 10, 2015 – Biotech Patent Law Road Show (American Intellectual Property Law Association) – Boston, MA

September 10-11, 2015 - "Advanced Patent Prosecution Seminar 2015: Claim Drafting & Amendment Writing" (Practising Law Institute) – Chicago, IL

September 15-17, 2015 – World IP Forum (Intellectual Professionals LLP) – Bangkok, Thailand

September 17, 2015 – "Professional Negligence: Real-Life Case Studies in IP Malpractice & How to Avoid Them" (American Intellectual Property Law Association) – 12:30 – 2:00 pm (Eastern)

September 18, 2015 – Developments in Pharmaceutical and Biotech Patent Law 2015 (Practising Law Institute) – San Francisco, CA

September 22, 2015 – "The Evolving World of Biosimilars Litigation" (McDonnell Boehnen Hulbert & Berghoff LLP) – 10:00 am to 11:15 am (CT)

September 24, 2015 – "Trade Secrets and Cybersecurity: Protecting Intellectual Property, Mitigating Loss and Navigating Legal Responses" (Strafford) – 1:00 to 2:30 pm (EDT)

September 24-25, 2015 - Advanced Patent Law Seminar (Chisum Patent Academy) – Washington, DC

September 24-25, 2015 – Seminar on European Patent Law (Grünecker) – Munich, Germany

September 27-29, 2015 – 43rd Annual Meeting (Intellectual Property Owners Association) – Chicago, IL

October 2, 2015 – Developments in Pharmaceutical and Biotech Patent Law 2015 (Practising Law Institute) – New York, NY

***Patent Docs is a media partner of this conference or CLE
Webinar on Trade Secrets and Cybersecurity

August 15, 2015

Strafford will be offering a webinar/teleconference entitled "Trade Secrets and Cybersecurity: Protecting Intellectual Property, Mitigating Loss and Navigating Legal Responses" on September 24, 2015 from 1:00 to 2:30 pm (EDT). Matthew F. Prewitt of Schiff Hardin will provide guidance to IP counsel on protecting trade secrets from cyberattack, discuss what action to take if trade secrets are stolen in a cyberattack and to mitigate the loss, and examine the legal responses available to respond to a cyberattack. The webinar will review the following questions:

• What are the key vulnerabilities that make cyberattack and trade secret theft a real risk?
• What practical legal remedies are available if a company's trade secrets are stolen by cyberattack?
• What strategies can counsel employ to identify and manage the cyber risks to trade secrets?

The registration fee for the webinar is $297 ($362 for registration and CLE processing). Those registering by August 28, 2015 will receive a $100 discount ($165 discount for registration and CLE processing). Those interested in registering for the webinar, can do so here.
World IP Forum 2015

August 15, 2015

Intellectual Professionals LLP will be holding the next World IP Forum on September 15-17, 2015 in Bangkok, Thailand. The Forum will offer presentations on the following topics:

• Trade Secrets and IP Litigation Insurance
• IP and Taxation — Tax Benefits From IP Assets and IP Transactions
• The Next Round of Patent Reform — What Should It Incorporate
• Empowering the Society Through Intellectual Property
• After Myriad: Reconsidering the Incentives for Innovation in the Biotech Industry
• Alice vs CLS Bank: Ramifications on Computer Implemented Inventions and Business Method Patents
• Building and Protecting an International Drug Portfolio
• Before and After the America Invents Act
• The War Between Biologics and Biosimilars — The Dance for Patent
• Europe on the Edge
• In Search of Lower Cost Resolution: Using Arbitration to Resolve Patent Disputes
• IP in the Biotech and Pharma Industry: A Year in Review
• Assessing Patent Strength and Value: Applying the Patent Valuation Gauntlet
• Improving Global Patent Prosecution
• Future of Intellectual Property and IP Transactions
• Role of Technology Transfer for Promoting Innovation Based Research Through Academy Industry Nexus
• Insights from Brazil
• The Keys of Running a Globally Successful Patent Licensing Program
• Patent Valuation, Parameters, Tools and Best Practices — Learning & Evolution
• National IPR Policy of India
• IP Commercialization & Portfolio Management — Opportunities, Challenges and Practical Tips
• Fight Against NPEs: Can There Be a Uniform Strategy?
• IP Monetization: Maximize the Value of Your IP Assets
• IP Monetization: NPEs and Operating Companies — The Buy-Sell Negotiation Strategies

The complete agenda for the World IP Forum, including detailed descriptions of conference sessions and a list of speakers, can be found here.

The registration fee for the Forum is US $699. Those interested in registering for the Forum can do so here.
Seminar on European Patent Law

August 15, 2015

Grünecker will be offering a two-day seminar on European Patent Law on September 24-25, 2015 in Munich, Germany. The seminar will offer presentations on the following topics:

• The UPC and the Unitary Patent (All You Need to Know — And Not More)
• The Doctrine of Equivalence: Dead in the UK, Dying in Germany, Very Alive in France
• The EPO — Most Important Recent Decisions
• Patent Filing Strategies
• Plenary Discussion on Selected Issues

Those wishing to register can do so here.
Federal Circuit Delivers En Banc Opinion in Akamai v. Limelight

August 13, 2015

By Kevin E. Noonan & Michael Borella —

The Federal Circuit handed down a unanimous en banc decision today regarding the interplay between literal infringement and induced infringement in Akamai Technologies Inc. v. Limelight Networks, Inc. On remand from a disapproving reversal by the Supreme Court, the en banc court took notice of the "opportunity" provided in this case to "revisit the § 271(a) question" in view of the High Court's opinion that there was "the possibility that [the Federal Circuit] erred by too narrowly circumscribing the scope of § 271(a)" in its earlier opinion. Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111, 2119, 2120 (2014). The per curiam opinion announces that the Court now "unanimously set forth the law of divided infringement under 35 U.S.C. § 271(a)" and that, in this case there was substantial evidence to support the jury finding that Limelight directly infringed U.S. Patent No. 6,108,703. Accordingly, the Federal Circuit reversed the District Court's grant of Limelight's motion for judgment of non-infringement as a matter of law.

To recap, the case arose in 2006, when Akamai sued Limelight in district court alleging infringement of U.S. Patent No. 6,108,703. The '703 patent is assigned to the Massachusetts Institute of Technology ("MIT") and is exclusively licensed to Akamai.

Claim 34 of the '703 patent recites:

A content delivery method, comprising:
    distributing a set of page objects across a network of content servers managed by a domain other than a content provider domain, wherein the network of content servers are organized into a set of regions;
    for a given page normally served from the content provider domain, tagging at least some of the embedded objects of the page so that requests for the objects resolve to the domain instead of the content provider domain;
    in response to a client request for an embedded object of the page:
    resolving the client request as a function of a location of the client machine making the request and current Internet traffic conditions to identify a given region; and
    returning to the client an IP address of a given one of the content servers within the given region that is likely to host the embedded object and that is not overloaded. [Emphasis added]

The claimed invention is directed to delivering electronic data using a content delivery network (CDN). It purports to facilitate faster delivery of the data by separating the content of a website onto multiple servers. The content that requires greater network capacity (such as photos and videos) can be assigned to servers ("tagged") that provide this content at faster speeds. The remaining content can be provided by non-specialized servers. Other independent claims further recited a step of serving the embedded object from one of the content servers.

Limelight operates a CDN, and content providers are its customers. Limelight carries out three of the four claimed steps (the distributing, resolving, and returning steps), but did not tag components of its customers' websites — instead, Limelight contractually required its customers to do their own tagging, if those customers wanted to exploit the faster servers. The relevant language of the contract stated "Customer [i.e., content provider] shall be responsible for identifying via the then current [Limelight] process all [URLs] of the Customer Content to enable such Customer Content to be delivered by [Limelight]," and "Customer shall provide [Limelight] with all cooperation and information necessary for [Limelight] to implement the [Content Delivery Service]."

At trial, the jury found that Limelight and its customers jointly and directly infringed '703 patent under 35 U.S.C. § 271(a), and awarded $40 million in damages. Following this verdict, the Federal Circuit decided Muniauction, Inc. v. Thomson Corp. In Muniauction, the Court held that direct infringement of a claimed method requires that a single entity perform every step of the claim (the "single entity rule"). But, this requirement is satisfied if steps are performed by multiple parties provided that a single defendant exercises "control or direction" over entire process. Thus, neither party is liable for infringement if they perform all of the steps, but merely engage in an arms-length relationship to do so.

Limelight moved for judgment of non-infringement as a matter of law (JMOL) in view of Muniauction, and the District Court granted the motion, holding that because (i) no single entity performed all of the claimed steps, and (ii) the contractual relationship between Limelight and its customers did not rise to the level of "control or direction" there was no liability. On appeal, a Federal Circuit panel affirmed, but the Court reheard the case en banc, reversed, and remanded the case for further proceedings. Particularly, the en banc majority reasoned that Limelight and its customers did not directly infringe, but "the evidence could support a judgment in its favor on a theory of induced infringement [under 35 U.S.C. § 271(b)]" because "inducement does not require that the induced party be an agent of the inducer or be acting under the inducer's direction or control." The Court, however, also stated that "here can be no indirect infringement without direct infringement."

In a June 2014 appeal, the Supreme Court took issue with this apparent contradiction, and held that a defendant is not liable for inducing infringement under 35 U.S.C. § 271(b) when no one party has directly infringed the patent under § 271(a). The High Court reversed the Federal Circuit finding that Limelight had infringed the '703 patent and sent the case back to the Federal Circuit for reconsideration.

On remand, a Federal Circuit panel considered whether Limelight has infringed under § 271(a). Judge Linn authored the opinion of the court, joined by Chief Judge Prost with Judge Moore dissenting. According to the majority, Limelight was not liable for direct infringement "because Limelight . . . did not perform all of the steps of the asserted method claims . . . and because the record contains no basis on which to impose liability on Limelight for the actions of its customers who carried out the other steps, Limelight has not directly infringed the '703 patent under § 271(a)." The majority confirmed that "direct infringement liability of a method claim under 35 U.S.C. § 271(a) exists when all of the steps of the claim are performed by or attributed to a single entity — as would be the case, for example, in a principal-agent relationship, in a contractual arrangement, or in a joint enterprise." Here, there was no liability "[b]ecause this case involves neither agency nor contract nor joint enterprise" and "[e]ncouraging or instructing others to perform an act is not the same as performing the act oneself."

In dissent, Judge Moore disagreed. She believed that "§ 271(a) includes joint tortfeasor liability." Characterizing the majority's rule as creating "a gaping hole in what for centuries has been recognized as an actionable form of infringement," she opined that the single entity rule "is a recent judicial creation inconsistent with statute, common law, and common sense."

The Court reheard the appeal en banc and arrived at the decision handed down today. In its opinion, the per curiam court set out the basics, that only if a single tortfeasor performed all the steps in a claimed method would direct infringement lie and liability be found. However, the Court recognized that situations (like the one at bar) could arise where no one tortfeasor can be fairly said to directly infringe by practicing all the steps of a claimed method. However, according to the opinion, "an entity [is] responsible for others' performance of method steps in two sets of circumstances: (1) where that entity directs or controls others' performance, and (2) where the actors form a joint enterprise." This holding leads to an assessment of whether a single entity "directs or controls the acts of another."

Turning to vicarious liability law for enlightenment (while recognizing that the circumstances under which vicarious liability arises are not entirely analogous to the question before the court), the opinion states that infringement liability can arise when the infringing acts are those of an agent or the subject of a contract for their performance. Applying these principles to the Limelight situation, the Court held that joint infringement may apply "when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner and timing of that performance," relying on Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). And this question, according to the opinion, is one of fact (i.e., for a jury) that is to be reviewed under the "substantial evidence" standard.

The opinion also considers the other situation where direct infringement can be found through the actions of two or more actors who have formed a "joint enterprise." Under these circumstances, each joint tortfeasor can be held responsible for the actions of the other "as if each is a single actor." Such a joint enterprise is found only on proof of four elements:

(1) an agreement, express or implied, among the members of the group;
(2) a common purpose to be carried out by the group;
(3) a community of pecuniary interest in that purpose, among the members; and
(4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

(citing the Restatement (Second) of Torts, § 491). This is also a question of fact for the jury and subject to review using the substantial evidence standard.

The Court's synthesis of these legal principles is directed to the question of "whether all method steps can be attributed to a single entity" and is "not limited solely to principal-agent relationships, contractual arrangements, and joint enterprise, as the vacated panel decision held." This approach is also consistent with the Supreme Court's admonishments in its opinion regarding the extent to which the Federal Circuit did and did not understand what constituted literal infringement under § 271(a). But the en banc court also acknowledged "other factual scenarios [that] may arise warranting attributing others' performance of method steps to a single actor," consistent with the fact-based nature of the inquiry.

Applying these principles to the case before the Court, the en banc opinion held that "[t]he jury heard substantial evidence from which it could find that Limelight directs or controls its customers' performance of each remaining method step, such that all steps of the method are attributable to Limelight." This control was found by the panel in Limelight's conditions imposed on its customers to perform certain steps (the "tagging" and "serving" steps) of the claimed method under conditions where Limelight determined the "manner or timing" of such performance. These conditions include Limelight's requirement that its customers sign a "standard contract" containing the requirement for tagging and serving content. After discussing the content of these contractual provisions, the Court concluded "if Limelight's customers wish to use Limelight's product, they must tag and serve content. Accordingly, substantial evidence indicates that Limelight conditions customers' use of its content delivery network upon its customers' performance of the tagging and serving method steps."

With regard to the "manner and timing" question, the Court held that there was substantial evidence that Limelight was in control of that, too. This evidence was found in Limelight's "welcome letter" that instructed each customer how to use Limelight's services. These instructions included "step-by-step" instructions on how to tag content, under circumstances where failure to follow "these precise steps" will make Limelight's services unavailable. Further, "Limelight's engineers assist with installation and perform quality assurance testing [and] remain available if the customer experiences any problems."

Taking these (and other facts) into consideration, the en banc court held that "Limelight's customers do not merely take Limelight's guidance and act independently on their own. Rather, Limelight establishes the manner and timing of its customers' performance so that customers can only avail themselves of the service upon their performance of the method steps."

This opinion signals a move away from the restrictive Muniauction joint infringement framework to something that resembles a "totality of the circumstances" test. Arguably, after today, joint infringement will be able to be established in more scenarios. But the burden of doing so may be higher, as a multitude of factors may need to be considered.

This is not the end of the line for the parties, however. As the opinion notes, because there are remaining issues in both the appeal and cross-appeal, the matter will be once more before the panel. Perhaps more troubling for Akamai, however, is the following language from the Supreme Court's 2014 opinion:

[T]here has simply been no infringement of the method [of the '703 patent], because the performance of all the patent's steps is not attributable to any one person.

[W]here there has been no direct infringement, there can be no inducement of infringement under §271(b).

[T]he reason Limelight could not have induced infringement under §271(b) is not that no third party is liable for direct infringement; the problem, instead, is that no direct infringement was committed [emphasis in opinion].

These statements suggest that, insofar as the Court considered the issue of direct infringement, the Justices had decided it did not arise from the behavior relied upon by the en banc court in arriving at its decision today. Which suggests that another trip back to the Supreme Court may be in the offing.

Akamai Technologies, Inc. v. Limelight Networks, Inc. (Fed. Cir. 2015)
Before Chief Judge Prost and Circuit Judges Newman, Lourie, Linn, Dyk, Moore, O'Malley, Reyna, Wallach, and Hughes
Per curiam opinion
Ferrum Ferro Capital Files Motion to Strike Allergan’s Complaint Alleging Misuse of IPR Process

August 12, 2015

By Donald Zuhn —

In June, Allergan, Inc. and Allergan Sales, LLC filed suit against Ferrum Ferro Capital, LLC and Kevin Barnes ("FFC") in the U.S. District Court for the Central District of California, alleging that FFC attempted to extort Allergan by misusing the Inter Partes Review ("IPR") process established under the Leahy-Smith America Invents Act, and that FFC's misuse of the patent system constituted attempted civil extortion and malicious prosecution under California law and also violated California's Unfair Competition Law. On Monday, FFC moved to strike Allergan's complaint under California's "anti-SLAPP" (strategic litigation against public participation) statute (California Code of Civil Procedure § 425.16), which FFC indicates is a creation of state law that "protect[s] defendants from interference with the exercise of their constitutional rights, particularly the right to petition the government" (emphasis in original).

In the memorandum accompanying its motion to strike, FFC contends that the only reason Allergan filed suit was to retaliate against FFC for filing an IPR petition with the U.S. Patent and Trademark Office's Patent Trial and Appeal Board to invalidate an Allergan patent (U.S. Patent No. 7,030,149). FFC argues that because Allergan filed suit against FFC as retaliation for "FFC engaging in the fundamental First Amendment right to petition the government," the first requirement of the anti-SLAPP statute is satisfied. FFC also argues that "[s]ince there are sound legal arguments to support FFC's position that Claim 4 of the '149 Patent is non-patentable as obvious, Allergan cannot demonstrate a probability of prevailing," and therefore the second requirement of the anti-SLAPP statute is satisfied.

With regard to the first requirement, FFC argues that its IPR petition is "clearly protected conduct." FFC indicates that:

[It] is a venture fund focused on the strategic deployment of capital towards socially beneficial ends. One of the company's core social interests is expanding the availability of lower-cost pharmaceutical products for senior citizens suffering from debilitating medical conditions such as glaucoma. While FFC is currently not directly in the business of distributing pharmaceuticals, it looks for opportunities where it can apply its capital to create opportunities to promote its core principles while still obtaining a return on its capital.

FFC continues by stating that "Allergan presently holds the exclusive rights over its tellingly named drug, Combigan, which merely combines two other drugs (brimonidine and timolol) to treat glaucoma," and asserting that "[u]nder a belief that Allergan's Combigan patents are obvious and therefore invalid," FFC filed an IPR petition for the '149 patent. FFC indicates that:

If the IPR proceeding is successful, Allergan's artificial monopoly on this market would be lifted, allowing other generic producers, including producer(s) financed by FFC, to make and distribute affordable solutions to patients seeking a cost efficient solution to their ailment, thereby satisfying Ferrum Ferro's core missions of reducing the cost of pharmaceutical products for senior citizens suffering from debilitating medical conditions.

As for Allergan's motivation in filing its complaint, FFC argues that:

Plaintiffs filed this action with the specific intent of censoring Ferrum Ferro's petition, or to pressure Ferrum Ferro into dropping its case. Their motive? To protect Allergan's artificial monopoly that has allowed it to extract a premium price for the mere act of combining two known medications into a single solution. Using threats of civil litigation as a means of intimidating people from petitioning their government as Plaintiffs has done here is the precise conduct from which California's Anti-SLAPP statute seeks to shield speakers.

With regard to the second requirement of the anti-SLAPP statute, and in support of its assertion that "[a] reasonable person reviewing all the facts could conclude that claim 4 of the '149 patent is obvious and therefore nonpatentable," FFC states that "after carefully reviewing evidence as presented in district court, an esteemed judge of the Federal Circuit, in a strongly worded opinion, stated that claim 4 of the '149 patent is indeed obvious and therefore nonpatentable and invalid." FFC's reference is to Judge Dyk's concurring-in-part and dissenting-in-part opinion in Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286 (Fed Cir. 2013). FFC also notes that the standard before the Federal Circuit (clear and convincing evidence) is higher than the standard before the Board (preponderance of the evidence), and therefore asserts that "the defendants were unsuccessful [in the Allergan, Inc. v. Sandoz Inc. case] because they were required to prove by clear and convincing evidence that claim 4 of the '149 patent was obvious" (emphasis in original). FFC declares that:

Understandably, Allergan would prefer to avoid defending its patent in the face of this lower standard of proof. Allergan understands there is a statistically significant probability that FFC will prevail on its claims. Accordingly, to retaliate for FFC's [IPR] petition, and to bring collateral pressure on FFC to drop its case, Allergan seeks to distort the law and allege claims that have no basis in order to prevent the Inter Partes Review from proceeding.

FFC adds that:

Rather than defend the IPR, Allergan followed its usual modus operandi by resorting to aggressive litigation in district court to keep treatments out of the eyes of under-insured patients, while maximizing their own profits. In doing so, Plaintiffs make the extraordinary assertion that petitioning the government for an Inter Partes Review constitutes "extortion," "unfair competition," and "malicious prosecution."

In a footnote, FFC continues:

It is ironic that Allergan calls [FFC's] actions "extortion," when Allergan itself makes its profits by trying to artificially inflate the costs of glaucoma treatments. Allergan combined two drugs that already existed, and despite the obviousness of this "invention," if a suffering patient can’t afford Allergan's "patent premium" then as far as Allergan is concerned, that patient should simply go blind. Despite this being the true narrative here, Allergan has the audacity to use the word "extortion" to describe Defendants' quest to bring these treatments to under-insured patients for a lower cost. Perhaps the senior citizens currently unable to see because Allergan blocks their ability to afford sight-saving treatments would have another word for it.

On the specific claim of extortion, FFC argues that Allergan cannot show that FFC wrongfully obtained Allergan's property by threatening to do an unlawful injury to Allergan or Allergan's property, and therefore cannot succeed on its attempted civil extortion claim. As for Allergan's unfair competition claims, FFC argues that "[i]f the underlying act is legal, then one cannot impose a duty to refrain from it through California’s Unfair Competition Law (UCL)." Addressing Allergan's allegations in support of its UCL claim, FFC argues that:

Allergan's assertion that [use of a mail drop box in connection with running its business] is an unfair business practice . . . seems nonsensical, and their inclusion of what they think is a scurrilous photograph of the facility makes their intent questionable. The use of a private mail drop box is certainly not an unfair business practice, and such an allegation is absurd.

As for Allergan's assertion that FFC prepared a false proposed FDA filing for a hypothetical generic brimonidine tartrate/timolol maleate ophthalmic solution, FFC noted that its counsel wrote in a letter that "FFC is prepared to seek FDA approval via a Paragraph III ANDA filing to produce and market a generic brimonidine tartrate/timolol maleate ophthalmic solution with a Manufacturing Parter ("CMP") upon the invalidation of the Combigan Orange Book-listed patents" (emphasis in FFC's memo). FFC contends that its counsel "made it clear, via the proposed Paragraph III as opposed to Paragraph IV FDA ANDA submission, that FFC would not infringe on the '149 patent as long as it was valid."

Finally, with respect to Allergan's malicious prosecution claim, FFC argues that "[t]his is the most obviously sanctionably weak claim," stating that although "Allergan admits in its Complaint that an essential element of a malicious prosecution claim under California law is that the proceedings brought against the party claiming malicious prosecution must have been concluded in its favor," "[t]he face of the complaint establishes that . . . the civil proceedings at question [i.e., the IPR proceeding] have not been concluded at all, much less in Allergan’s favor."

FFC's motion will be heard on November 9, 2015. Patent Docs will continue to report on further developments in the case.

recent posts

about