Last week, in Allergan Inc. v. Apotex Inc., a panel of the Federal Circuit reversed a finding from the Middle District of North Carolina that patents covering Allergan’s Latisse® (bimatoprost ophthalmic solution) were not invalid for obviousness. In doing so, the Federal Circuit reinforced the principle that the obviousness analysis, including secondary considerations of nonobviousness,…
In Limelight Networks, Inc. v. Akamai Technologies, Inc., handed down last week, the Supreme Court unanimously ruled that there can be no liability for induced patent infringement under 35 U.S.C. § 271(b) if no one has directly infringed the patent under 35 U.S.C. § 271(a). While that principle may seem self-evident, it was not so…
This morning, in Nautilus, Inc. v. Biosig Instruments, Inc., the Supreme Court rejected the Federal Circuit’s formulation of the definiteness requirement under 35 U.S.C. § 112, para. 2. Under the now-abandoned iteration of the definiteness test, claims were deemed to have satisfied the statutory requirement so long as they were “amenable to construction” and “not insolubly…
In a previous post, we wrote about developing trial themes early. In this post, we explore the importance of using depositions to support that trial theme. In ANDA cases, particularly those with multiple defendants, we have noticed a trend. Attorneys are not taking the time to adequately prepare for depositions or to think strategically about their…
In Octane Fitness v. Icon Health and Fitness, the United States Supreme Court unanimously held that the Federal Circuit’s standard for awarding attorneys’ fee under 35 U.S.C. § 285 is too rigid, lowering the burden for successful patent litigants to recover their fees. All patent litigants should take heed: the risk of patent litigation just…
In the recent Braintree Labs v. Novel Labs, the Federal Circuit may have limited the value of composition for methods of treatment claims. The patent-in-suit related to compositions for preparing the bowels of a patient ready for colonoscopy. In particular, the claims were to a bowel prep composition “for inducing purgation of the colon of…
The Federal Circuit recently affirmed a decision by the District of New Jersey finding two patents owned by Hoffmann-La Roche invalid for obviousness. The patents-at-issue in Hoffmann-La Roche v. Apotex Inc., No. 2013-1128, are directed to methods of treating osteoporosis through a once-monthly administration of ibandronate, commercially available as Boniva. The Court applied surrogate testing…
On April 9, 2014, in Purdue Pharmaceutical Products, L.P. v. TWi Pharmaceuticals, Inc., Civ. No. 12-5311 (D.N.J.), Judge Jose L. Linares of the United States District Court for the District of New Jersey ruled that a generic drug company who is not a first-filer has standing to assert a counterclaim for non-infringement despite the issuance…
A district court judge in New Jersey recently granted an API supplier’s motion to dismiss claims filed against the supplier in an ANDA suit, raising questions about whether an API supplier belongs as a defendant in these litigations. United Therapeutics Corp. v. Sandoz, Inc., No. 12-CV-1617 (March 10, 2014). The Court concluded that a declaratory…
It is a common practice in Hatch-Waxman and other civil litigation for parties to try to hide the ball in producing documents by interposing vague objections to document requests and then producing select documents subject to their vague objections. Some courts are beginning to deem that such conditional responses to requests for production are not…