On November 7, 2014, the Federal Circuit heard oral arguments in Aria Diagnostics, Inc. v. Sequenom, Inc., where Sequenom is appealing the district court’s summary judgment of invalidity under 35 USC § 101. The active questioning by the judges suggests that they are wrestling with how to apply the Supreme Court’s decision in Mayo to different types of inventions. Continue reading this entry
Judge Stark of the U.S. District Court for the District of Delaware granted defendants’ motion to dismiss Genetic Technologies, Ltd.’s patent infringement suit with regard to claim 1 of U.S. Patent 5,612,179 on the basis that the claimed sequence analysis method is invalid under 35 USC § 101 because it merely applies conventional methods to a natural phenomenon. Judge Stark’s opinion draws on recent Supreme Court and Federal Circuit decisions, and shines a light on the difficulties biotechnology patents can face under Mayo, Myriad and Alice. If this case is appealed to the Federal Circuit, will it find that Judge Stark when astray in the analysis that led to the finding of ineligibility? Continue reading this entry
Thanks to Kyle Canavera, an associate in the Electronics practice of Foley & Lardner LLP, for providing insight for this article.
On October 26, 2014, 60 Minutes aired a story called “Breeding Out Disease” that included a segment about GenePeeks, a company that uses genetic information from prospective parents to make thousands of “digital babies” and ”calculate the risk of two people conceiving a child with any one of 500 severe recessive pediatric disorders.” When the topic of GenePeeks’ patents came up, that piqued my interest, and I decided to investigate further. Continue reading this entry
On October 20, 2014, the Federal Circuit issued an order denying the petition for rehearing or rehearing en banc filed in Bristol-Meyers Squibb Co. v. Teva Pharmaceuticals, USA, Inc. While the order itself may not be surprising, with two opinions concurring in the denial and two dissenting, it is clear that there is more to the story. Indeed, the judges seem to disagree as to the permitted use of post-filing date evidence in a nonobviousness analysis. Continue reading this entry
It has been over three years since the Leahy-Smith America Invents Act was signed into law by President Obama, and just over eighteen months since the effective date of the first-inventor-to-file changes to 35 USC § 102. While those changes were a hot topic in March of 2013, it is only over the past few weeks that I have been facing first-inventor-to-file issues in my daily practice. These are a few of the questions I have been encountering. Continue reading this entry