Australia High Court Rules Against Gene Patents

Colleagues in Australia have been spreading the bad news: The High Court of Australia followed the lead (?) of the U.S. Supreme Court and determined that Myriad cannot patent the isolated BRCA1 gene in Australia. Thanks to Adam Denley, Ph.D., Senior Associate at Freehills Patent Attorneys, for providing the article below on the October 6, 2015 decision which seems to invalidate Australian gene patents. Tania Obranovich, Ph.D. , Special Counsel at Watermark, considers far-reaching implications of the decision–including the surprising ruling against cDNA claims–in her article, which you can read here. Continue reading this entry

Beware Reexamination Amendments

In R+L Carriers, Inc. v. Qualcomm, Inc., the Federal Circuit affirmed the district court’s dismissal of R+L’s infringement claims against Qualcomm, finding that the claims issued after reexamination were not “substantially identical” to the original claims. Considering the claim language at issue and the court’s comments, this decision suggests that almost any reexamination amendments could be found to be narrowing if the examiner cites them as supporting allowance. Continue reading this entry

Divided Infringement Between Doctor And Patient

Recent jurisprudence on the issue of divided infringement has arisen in the context of computer-related technologies, where a user or customer performs one or more steps of a patented method. Now the issue has arisen in the pharmaceutical context, where a patient self-administers a drug. In Eli Lilly and Company v. Teva Parenteral Medicines, Inc., et. al., 1-10-cv-01376 (INSD), the U.S. District Court for the Southern District of Indiana found that generic drug manufacturers can be liable for induced infringement when a doctor and patient perform different steps of the method.

Continue reading this entry

USPTO Won't Stop Kyle Bass

In a concise opinion, the USPTO Patent Trial and Appeal Board (PTAB) refused to sanction Kyle Bass and the Coalition for Affordable Drugs for abusing the IPR process. Celgene Corp. had filed motions for sanctions in IPRs brought against its patents relating to Thalomid® (thalidomide) and Revlamid® (lenalidomide). In denying the motions, the PTAB emphasized the broad language of the IPR statute and noted that Celgene had not argued that any of the IPRs amounted to “a non-meritorious patentability challenge.”

Read more about the decision and proposed legislation to limit hedge fund-sponsored IPRs in my article on Foley & Lardner LLP’s PTAB Trial Insights blog.

U.S. Government Patent Infringement Precludes Induced Infringement

In Astornet Technologies, Inc. v. BAE Systems, Inc., the Federal Circuit affirmed the district court’s dismissed of actions for induced infringement where the alleged direct infringer was the U.S. government. In particular, the court agreed that under 28 USC § 1498, the patentee’s “exclusive remedy for the alleged infringement was a suit against the United States in the Court of Federal Claims.” Continue reading this entry