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Phigenix, Inc. v. Genetech, Inc. Docket No. 2017-2617, 2018-1042 REYNA, BRYSON, STOLL September 5, 2019 Non-Precedential Brief Summary: DC grant of SJ of no induced infringement after exclusion of Phigenix’s expert report affirmed (e.g., “[w]ithout its expert report, Phigenix’s direct infringement case fails”). Summary: Phigenix appealed the DC grant of summary judgment (SJ) of non-infringement (induced infringement) of US 8,080,534 (relating to the prevention and/or treatment of breast cancer) to Genentech after striking an expert report. Genentech cross-appealed the DC denial of SJ for invalidity. Phigenix alleged induced infringement by Genentech “by encouraging health care professionals to prescribe and administer…
BioDelivery Sciences Int., Inc. v. Aquesitive Therapeutics, Inc., FKA Monsol Rx, LLC Docket No. 2019-1643-45 (IPR2015-00165, -00168, -00169) NEWMAN (D), LOURIE, REYNA (Order) August 26, 2019 Brief Summary: On remand under SAS after instituting IPRs on less than all the alleged grounds, the FC panel approved the Board’s decision to deny IPR on all grounds instead of proceeding all the grounds. Summary: BioDelivery’s previous appeal of the Board’s IPR final written decisions (FWDs) based on institution of review of the claims of US 8,765,167 on less than all of the grounds (three of 14) alleged in BioDelivery’s three petitions, was…
WAG Acquisition, LLC v. WebPower, Inc. et al. Docket No. 2018-1617 (IPR2016-01238) NEWMAN, CHEN, STOLL August 26, 2019 Non-precedential Brief Summary: Board IPR decision finding WAG’s claims invalid for anticipation reversed due to erroneous claim construction (e.g., the definition “comes from the prior art Carmel reference”); obviousness conclusion affirmed since negative limitation not disclosed by prior art. Summary: WAG appealed Board IPR decision finding claims 10-18 of WAG’s US 8,122,141 directed to “[a] server for distributing streaming media” invalid for being anticipated by a US patent (“Carmel”) or obviousness over Carmel in view of International Standard ISO/IEC 11172. The Board’s…
Guangdong Alison Hi-Tech Co. v. Int. Trade Comm. (ITC), Aspen Aerogels, Inc. Docket No. 2018-2042 DYK, CHEN, STOLL August 27, 2019 Brief Summary: ITC finding of no indefiniteness or invalidity for anticipation or obviousness affirmed. Summary: Guangdong Alison Hi-Tech Co. (“Alison”; a foreign manufacturer) appealed ITC final determination that certain claims of Aerogel’s (a domestic company) US 7,078,359 directed to improved aerogel composition products are not indefinite regarding the term “lofty…batting”, or invalid for anticipation or obviousness. Alison manufactures aerogel insulation products and is currently subject to an ITC limited exclusion order following an unfair competition investigation, the order being…
INO Therapeutics LLC, et al. v. Praxair Distribution Inc., et al. Docket No. 2018-1019 DYK, CHEN, STOLL August 27, 2019 Non-precedential Brief Summary: DC finding that “method of treating patients” claims ineligible under section 101 affirmed as the claims are “focused on screening for a natural law” and “the invention does not improve treatment…by taking advantage of the body’s natural process”. DC finding of no infringement also affirmed. Summary: INO and Mallinckrodt (“INO”) asserted five patents related to methods for administering inhaled nitric oxide (“iNO”) (US 8,282,966; 8,293,284; 8,795,741; 8,431,163; and 8,846,112; all sharing a common specification (the “heart failure”…
The Chamberlain Group, Inc. v. Techtronic Industries Co., et al. (“TTI”) Docket No. 2018-2103, -2228 LOURIE, O’MALLEY, CHEN August 21, 2019 Brief Summary: DC finding of no invalidity under section 101 reversed; anticipation finding affirmed. Summary: TTI appealed DC grant of judgment as a matter of law (JMOL) for enhanced damages and attorney fees, its denial of TTI’s motion for JMOL of invalidity under section 101 (patent-eligible subject matter), and the jury’s infringement and validity verdicts. The disputed patent, Chamberlain’s US 7,224,275 is directed to a “movable barrier” (e.g., garage door) linked to a wireless controller. The FC panel opinion…
Arthrex, Inc. v. Smith & Nephew, Inc., Arthrocare Corp. (USPTO as Intervenor) Docket No. 2018-1854 (IPR2016-00918) DYK, CHEN, STOLL August 21, 2019 Brief Summary: Anthrex’s due process and constitutional challenges to IPR rejected; Board claim construction and obviousness findings affirmed. Summary: Arthrex appealed Board IPR final written decision (FWD) finding that claims 10 and 11 of US 8,821,541 related to surgical suture anchors are invalid for anticipation and/or obviousness. Arthrex argued that the Board’s used of “different language than Smith & Nephew, Inc.’s petition” regarding the motivation to combine the prior art references “warrants reversal” as it violates its opportunity…
Enzo Life Sciences, Inc. v. Becton, Dickinson and Co. (Holozyme) Docket No. 2018-1232, -1233 (IPR2016-00820, -00822) LOURIE, O’MALLEY, CHEN August 16, 2019 (Non-Precedential) Brief Summary: Board decisions of invalidity of Enzo’s claims for anticipation and obviousness affirmed; arguments that retroactive application of IPRs is unconstitutional rejected. Summary: Enzo appealed Board IPR decisions finding various claims of US 7,064,197 invalid for anticipation or obviousness, and challenges the IPRs as a violation of the Fifth Amendment. The FC panel reviewed the Board’s legal determinations de novo and its factual findings underlying those determinations for substantial evidence (that which “a reasonable mind might…
Nalpropion Pharmaceuticals, Inc. v. Actavis Laboratories FL, Inc. Docket No. 2018-1221 PROST, LOURIE, WALLACH August 15, 2019 Brief Summary: DC decision of no invalidity for lack of WD affirmed, but decision of no obviousness reversed. Summary: Actavis appealed DC judgment that is proposed ANDA naltrexone/bupropion extended release product (ANDA 208043) would infringe certain claims of Nalpropion’s US 7,375,111; 7,462,626; and 8,915,195; that those claims are not invalid for lack of written description (WD) or obviousness; the effective date of Actavis’ ANDA can be no earlier than the expiration dates of the patents; and permanently enjoining Actavis from manufacturing, using, or…
Genetic Vet. Sciences, Inc. (“PPG”) v. Laboklin GmbH & Co., KG, The University of Berlin Docket No. 2018-2056 WALLACH, HUGHES, STOLL August 9, 2019 Brief Summary: DC finding of personal jurisdiction over foreign university and its foreign licensee affirmed; finding of no eligibility of claims for detecting genetic mutations under section 101 affirmed. Summary: Paw Prints Genetics (“PPG”) appealed DC DJ finding Laboklin’s US 9,157,114 directed to “[a]n in vitro method for genotyping a Labrador Retriever” by genotyping a particular gene as being unpatentable under section 101. The University and exclusive licensee Laboklin appealed the DC’s denial of its motion…
Eli Lilly and Company v. Hospira, Inc., Dr. Reddy’s Laboratories Docket No. 2018-2126, -2127, -2128 LOURIE, MOORE, TARANTO August 9, 2019 Brief Summary: DC literal infringement decision reversed, but infringement under DOE affirmed. Summary: Hospira and Dr. Reddy’s (DRL) appealed two DC judgments of infringement of Lilly’s US 7,772,209 regarding antifolate pemetrexed product Alimta® (a disodium salt; NDA 021462 for which the ‘209 patent is the only OB-listed patent). Hospira and DRL sought to market pemetrexed ditromethamine, “represent[ing] to the FDA that their choice of the tromethamine cation was immaterial because pemetrexed dissociates from its counterion in solution…and tromethamine was…
Ajinomoto Co. et al. v. Int. Trade Commission (ITC) et al. Docket No. 2018-1590, -1629 (ITC No. 337-TA-1005) DYK (C/D), MOORE, TARANTO August 6, 2019 Brief Summary: ITC claim construction, written description, and finding that certain E. coli strains imported by CJ infringed Ajinomoto’s patent affirmed. Summary: Ajinomoto appealed ITC decision (19 USC section 1337) that certain E. coli strains used to produce L-tryptophan and imported by CJ CheilJedang Corp. (“CJ”) infringed the claims of US 7,666,655 (the “earlier strains”), while others did not (the “later strains”), and the ITC’s claim construction. The ITC also found that the ‘655 patent…
Celgene Corp. v. Laura A. Peter (USPTO) Docket No. 2018-1167, -1168, -1169, -1171 (IPR2015-01096, -01102, -01103, -01092) TARANTO, MAYER, CHEN July 30, 2019 Brief Summary: Board obviousness determinations of Celgene’s thalidomide administration-related claims affirmed; arguments that IPRs are unconstitutional for pre-AIA patents rejected. Summary: Celgene appealed Board IPR decisions finding its thalidomide administration-related claims (e.g., “method for delivering a teratogenic drug…while avoiding the delivery of said drug to a [fetus]”; US 6,045,501 and US 6,315,720) invalid for obviousness, but also regarding the constitutionality of “the retroactive application of IPR proceedings to pre-AIA patents”. The Coalition for Affordable Drugs filed the…
Automotive Body Parts Association v. Ford Global Technologies, LLC Docket No. 2018-1613 Hughes, Scholl, Stoll July 23, 2019 Brief Summary: DC decision that Ford’s hood and headlamp design patents are not “primarily functional” designs and not unenforceable under doctrines of exhaustion or repair Summary: As explained in the opening paragraphs of this opinion, in it the FC panel “decide[s] what types of functionality invalidate a design patent”. ABPA asked the FC panel “to hold that aesthetic appeal-rather than any mechanical or utilitarian aspect-of a patented design may render it functional” and therefore not qualified for a design patent. Ford accused…
CCS Technology, Inc. v. Panduit Corp. Docket No. 2018-1733, -1734 (IPR2016-01647, -01648) TARANTO, MAYER, CHEN July 19, 2019 Non-precedential Brief Summary: Board’s IPR claim construction (broadest reasonable construction) and findings of invalidity for anticipation and obviousness affirmed. Summary: CCS appealed Board IPR decision for certain claims of US 6,869,227 and 6,758,600 (identical specifications) related to systems for managing bi-directional fiber optic communications (“universal breakout harness”) invalid for anticipation or obviousness. Each of the challenged claims include the terms “optical ribbon” and “optical fiber ribbon”, which the Board construed under the broadest reasonable construction (BRC; Cuozzo, US 2016; Teva, US 2015)…
TQ Delta, LLC v. Dish Network LLC Docket No. 2018-1799 (IPR2016-01470) NEWMAN, LINN, WALLACH July 10, 2019 Brief Summary: Board IPR FWD finding TQ Delta’s communications systems claims obvious affirmed. Summary: TQ Delta appealed Board IPR Final Written Decision (FWD) finding the challenged claims of US 8,611,404 relating to power management systems for telephone services unpatentable as obvious. TQ Delta argued the Board violated its “procedural rights by relying on a new claim construction” for the “‘without needing to reinitialize limitation as being ‘satisfied if any step of initialization is avoided’…because neither party advocated for a new claim construction and…