A Welcome Limit on Design Patent Protection: Curver Luxembourg, Sarl v. Home Expressions
Casey Houlton In 2019, the United States Court of Appeals for the Federal Circuit addressed the scope of design patent law in Curver Luxembourg, SARL v. Home Expressions. The court held that a design patent must be limited to a particular article of manufacture. As such, claim language may be used to limit the scope of a design patent to a particular article of manufacture if an article is not specified in the claim’s figures. Although the court’s failure to define an article of manufacture may result in some difficulties with Curver’s application, the court’s decision is consistent with the...
Potential Impact of Section 106 of the Stronger Patents Act on the Biotechnology Industry
Jeffrey Buckman A permanent injunction is the strongest remedy available to a patent holder in a patent infringement case. Throughout much of U.S. patent litigation history, plaintiffs were presumptively entitled to a permanent injunction when a defendant infringed the plaintiff’s valid patent. In 2006, however, in eBay Inc. v. MercExchange, the Supreme Court of the United States altered the standard for awarding permanent injunctions in patent infringement cases. In eBay, the Court held that patent holders are not presumptively entitled to permanent injunctions and instead must satisfy the traditional four-factor permanent injunction test. In June 2019, the House of Representatives...
Can a Two-Pronged Attack from Congress and the FDA Make Up for the BPCIA’s Limitations?
Guodong Fu The Biologic Product Competition and Innovation Act (BPCIA) of 2009, modeled after the Hatch-Waxman Act of 1984, has been largely criticized as ineffective in promoting significant competition in the pharmaceutical industry. Biosimilar sponsors lack guidance from the U.S. Food and Drug Administration (FDA) on how to obtain interchangeable designation for follow-on biologics. In addition, biosimilar sponsors face patent infringement litigation from reference drug companies as part of the “patent dance” set forth by the Supreme Court in 2017 in Sandoz v. Amgen. The FDA’s Biosimilar Action Plan (BAP) and a proposed bill from Congress, the Biologic Patent Transparency...
Patent Law in Space
Marie Weisfeiler The potential for private technological expansion into space raises questions of how to protect intellectual property rights of inventions that are both brought into space and made in space. While there are international treaties governing space law, none of these treaties discuss how to designate or enforce patent rights in space. The International Space Station has implemented a solution of quasi-territoriality to establish patent rights. This essay suggests, however, that this solution will be deficient when private entities venture further into space exploration. This essay then explores the possibility of a universal approach to patent law in space...
Litigation Misconduct and the Inequitable Conduct Defense: An Argument for Limiting Regeneron Pharmaceuticals, Inc. v. Merus N.V.
Connor Romm Inequitable conduct is a defense to a claim of patent infringement that can invalidate the underlying patent. At its inception, the defense was meant to encourage honest representations in the patent prosecution process. It later morphed into a source of troubling litigation tactics. In May 2011, in Therasense, Inc. v. Becton, Dickinson & Co., the United States Court of Appeals for the Federal Circuit, sitting en banc, sought to address disturbing trends in the doctrine and raised the standard required to prevail on the defense. In July 2017, in Regeneron Pharmaceuticals, Inc. v. Merus N.V., the same court...
The Cancer Immunotherapy Pilot Program and Chimeric Antigen Receptor-T Cell Treatments
Ellen Shamansky The Cancer Immunotherapy Pilot Program (also known as Patents 4 Patients) provides fast-track review to patent applications describing methods of treating cancer with immunotherapy, such as chimeric antigen receptor (“CAR”)- T cell treatments. This article explores considerations for claiming CAR-T cell treatments, including court rulings and examiner guidelines on patentable subject matter in the life sciences, the Federal Circuit’s decision in NantKwest, Inc. v. Lee in 2017, and pending applications and current litigation over CAR-T cell treatments. Read Full Text Here
IP Protection for Startups: The Role of Legislation in Stopping Patent Trolls and Encouraging Innovation
Kristin Garr In the past five years, the rate of startups entering the market has drastically increased, and it continues to see an upward trend, giving rise to the phenomenon known as the “startup boom.” While the United States Patent and Trademark Office (“USPTO”) has implemented major changes to the patent system in the past decade, the agency has not been able to address the problem that is crippling the success of emerging companies: patent trolls. Various states’ legislatures have recognized this issue and enacted statutes prohibiting bad faith patent assertions as a result. This article explains the startup industry’s...
Obtaining Marijuana Patents
Natali De Corso In the midst of a boom in the marijuana industry, marijuana breeders and companies have increasingly sought protection of their unique marijuana strains through patents. Their success, however, is limited given the fact that marijuana remains illegal under federal law and the United States Patent and Trademark Office has been reluctant to grant such patents. This article explores the current patentability of marijuana strains, discusses the difficulties marijuana breeders and companies face in patenting their product, and introduces successful marijuana-related patent applications. Read Full Text Here
The Patent Utility Requirement and Its Impact on Alternative Medical Treatments for Lyme Disease
Sarah Murphy Alternative medicine has made its way to the forefront of medical innovation, changing the way both doctors and patients approach complex health issues. Patenting medical inventions promotes advancement by increasing the exchange of vital information. This crucial benefit to society is particularly important for patients suffering from chronic illnesses who are dissatisfied with conventional medicine. Though the patent system requires that patented inventions are “useful,” there is no guarantee that the product is effective or even safe to use. The medical field must grapple with this trade-off between the benefit of new treatments made easily available to people...
Allergan’s Battle to Stay in Court: Does Inter Partes Review Violate the Constitution by Circumventing Courtroom Adjudication?
Ashley E. Petrarca Since its institution in 2011, inter partes review has caused considerable disruption in the intellectual property world, with some industry players questioning the process’ constitutionality. One of these players is Dublin-based pharmaceutical company Allergan, Inc., which asserts that it is unfair to force patent owners to defend their USPTO-granted patent rights before the Patent Trial and Appeal Board (“PTAB”), a non-Article III sanctioned forum. Central to this debate is the question of whether patents confer private or public rights. This article discusses both sides of the dialogue over inter partes review constitutionality, and postulates that the process...