“If you can’t say something nice, don’t say anything at all” can be good words to live by, but in the context of the Supreme Court’s denial of certiorari in Sequenom (scroll down to page 3), the silence is deafening–and could have a chilling impact on innovation in the fields of diagnostic and personalized medicine. Without knowing the Justice’s views on Sequenom, we are left with uncertainty surrounding the patent eligibility of diagnostic methods.
The Federal Circuit decided not to disturb the “longstanding administrative construction” of 35 USC § 120 that permits the filing of a continuation application on the same day its parent application grants as a patent. The decision came in Immersion Corp. v. HTC Corp., where the district court held that the statute requires a continuation application to be filed before the parent application grants, even though the USPTO does not keep time-of-day filing records. Continue reading this entry
On June 20, 2016, instead of deciding whether to grant certiorari in the biosimilar patent dance dispute between Amgen and Sandoz, the Supreme Court invited the Solicitor General “to file a brief in this case expressing the views of the United States.” While this will delay any Supreme Court review of the Federal Circuit’s first decision interpreting the patent dance provisions of the Biologics Price Competition and Innovation Act (BPCIA), it could give the Court an opportunity to consolidate its consideration of the biosimilar statute with other biosimilar cases making their way through the courts. Continue reading this entry
As we wait for the Supreme Court decision in Cuozzo Speed Technologies, LLC v. Lee, where the Court has been asked to decide whether the USPTO Patent Trial and Appeal Board (PTAB) should apply the “broadest reasonable interpretation” (BRI) of claims during Inter Partes Review proceedings, the Federal Circuit has been providing guidance on how to apply the BRI standard. The court’s emphasis on the “reasonable” requirement of that standard is welcomed by practitioners who often find USPTO claim constructions to be unreasonably broad. Continue reading this entry
In Halo Electronics, Inc. v. Pulse Electronics, Inc., the Supreme Court rejected the Federal Circuit’s two-part Seagate test for awarding enhanced damages under 35 USC § 284, finding that both the substantive requirement for “objective recklessness” and the “clear and convincing” burden of proof were inconsistent with the intent of the statute. In particular, the Court criticized the Federal Circuit’s test for letting those who willfully infringed in bad faith escape the sanctions Congress intended “for egregious infringement behavior.” Continue reading this entry