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On October 5, 2017, the Patent Trial and Appeal Board (“Board”) issued a final written decision in an inter partes review proceeding filed by Neptune Generics, LLC (“Neptune”) challenging the patentability of the claims in Eli Lilly & Co.’s Patent No. 7,772,209 (“the ’209 patent”).  The Board held that Neptune failed to establish that claims…

On November 27, 2017, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the Supreme Court will hold oral argument to determine the constitutionality of the inter partes review (“IPR”) process implemented by the America Invents Act.  Clearly, this case has the potential to drastically alter the patent litigation landscape if IPR…

Remands and reversals of the Board are relatively rare.  Nonetheless, the Federal Circuit has vacated or reversed PTAB decisions every so often for adopting an erroneous claim construction.[1]  Most recently, in Owens Corning v. Fast Felt Corp., 2016-2613 (Fed. Cir. Oct. 11, 2017), the Federal Circuit reversed the PTAB’s decision upholding the challenged…

Abraxis Bioscience, developer of cancer drug Abraxane®, filed suit against Actavis in April of 2016 following its receipt of notice that Actavis sought approval of a generic form of the drug from the FDA. The notice, called a Paragraph IV Certification, represented that Actavis believed the patents covering the drug were invalid, unenforceable, or would…

Senior U.S. Circuit Judge William Bryson ruled on Monday that all the asserted claims in the six Restasis patents that Allergan PLC (“Allergan”) accused generic-drug manufacturers of infringing were invalid for obviousness.[i] Last month, Allergan transferred the patents for this dry eye drug to the Saint Regis Mohawk Tribe (“Tribe”) in an endeavor to…

Just recently, Allergan PLC (“Allergan”) announced that it had transferred the patents for its dry-eye drug Restasis to the Saint Regis Mohawk Tribe to take advantage of its sovereign immunity status and ward off challenges to the patents. Under the deal, the Tribe received an upfront payment of $13.75 million and will receive $15 million…

In Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. LTD., 2016-2321 (Fed. Cir. August 22, 2017)(designated precedential), the Federal Circuit upheld the PTAB’s finding that a patent directed to an HVAC system was invalid.  However, a concurring opinion criticized the PTAB’s joinder practice and use of expanded panels, indicating that such practices…

In an effort to combat pharmaceutical patent holders, several companies are now filing petitions for post-grant review on the theory that the claims are unpatentable for lacking sufficient written description and enablement. Although the number of post-grant review proceedings remains fairly small in comparison to inter-partes review proceedings, the recent increase in filings by generic…