Federal Circuit Upholds a Silent Written Description

By David G. Barker In a precedential opinion this week, the Federal Circuit affirmed a district court judgment in favor of Novartis Pharmaceuticals, in an appeal brought by HEC Pharm challenging the written description in Novartis’s 9,187,405 patent. Novartis markets a 0.5 mg daily-dose drug to treat a form of multiple sclerosis, and the patent at issue claims a related treatment method. The claimed method does not require a “loading dose”—a higher initial dose than the daily doses. Before the patent was filed, a loading dose was known to “get therapeutic levels up quickly.” Novartis’s patent explicitly excludes “an immediately   Read More »

Posted in Patent Litigation | Tagged ,

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Federal Circuit Erases Juno’s $1 Billion Judgment by Invalidating Patent for Inadequate Written Description

By Anne Bolamperti and David G. Barker The Federal Circuit invalidated Juno Therapeutics, Inc.’s T cell therapy patent for cancer treatment and erased a billion dollar judgment in Juno’s favor. The court held that the jury verdict regarding the patent’s written description under 35 U.S.C. § 112(a) was not supported by substantial evidence. Juno’s U.S. Patent No. 7,446,190 (the “’190 patent”) relates to a nucleic acid polymer encoding a three-part chimeric antigen receptor (“CAR”) for a T cell. The first two portions of the CAR allow T cells to both kill target cells and divide into more T cells. The third portion   Read More »

Posted in IP and Technology Litigation, Patent Litigation | Tagged , , ,

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Supreme Court Determines New Limitations to Assignor Estoppel Doctrine

By Marsha Cotton and David G. Barker The Supreme Court upheld assignor estoppel in Minerva Surgical, Inc. v. Hologic, Inc., et al. but held that the Federal Circuit “failed to recognize the doctrine’s proper limits.” In doing so, the Court imposed new limitations on when the equitable doctrine applies in a patent case. The Court did away with the bright-line rule that any time an inventor assigns a patent, he or she cannot later argue that the patent is invalid. Previously, courts applied the rule without looking to the individual facts and circumstances in each case. But the Court held   Read More »

Posted in IP and Technology Litigation, Patent Litigation, Post Grant Proceedings | Tagged , ,

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Supreme Court Holds that PTAB Judges Are Unconstitutionally Appointed

By Daniel M. Staren and David G. Barker The Supreme Court held this week that the United States Patent and Trademark Office’s (“USPTO”) appointment of Patent Trial and Appeal Board (“PTAB”) judges cannot be constitutionally enforced because the USPTO director does not have authority to review final PTAB decisions. Smith & Nephew, Inc. and ArthroCare Corp. petitioned for inter partes review in the USPTO against Arthrex, Inc.’s patent on a surgical device. A PTAB panel consisting of three administrative patent judges (“APJs”) concluded that Arthrex’s patent was invalid. On appeal, the Federal Circuit determined that the appointment of APJs violated   Read More »

Posted in Inter Partes Review, Patent Litigation, Post Grant Proceedings | Tagged , ,

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Supreme Court to Review Copyright Statute Relating to Inaccurate Information Provided to Copyright Office

By Zachary Schroeder and Jacob C. Jones On June 1, 2021, the U.S. Supreme Court granted certiorari in Unicolors, Inc. v. H&M Hennes & Mauritz, LP.  The Court agreed to resolve whether 17 U.S.C. § 411(b) requires a district court to refer a matter to the Copyright Office where there is a claim the copyright registration holder made a knowing misrepresentation to the Copyright office in obtaining the registration, but there is no indicia of fraud or material error by the copyright holder.  H&M has asked the Court to interpret the statute as requiring referral merely upon a showing of   Read More »

Posted in Copyright Litigation, IP and Technology Litigation | Tagged , , , , , , , , , ,

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