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U.S. Appeals Court Strikes Blow To Diagnostic Method Patents

The Federal Circuit has issued its long-awaited decision in Ariosa Diagnostics, Inc. v. Sequenom, Inc., but the decision is not good news for those seeking to obtain or enforce U.S. patents on diagnostic methods. The appeals court affirmed the district court’s finding that Sequenom’s claims are invalid under 35 USC § 101, applying the analytical framework set forth in the U.S. Supreme Court’s Mayo decision in a way that could have a ripple effect across the diagnostic and personalized medicine industry.

The Claims At Issue 

The Sequenom patent at issue was U.S. Patent 6,258,540. The claimed technology relates to diagnostic methods for determining certain fetal characteristics such as [...]

Germany: The provision of information as a technical teaching? (Federal Court of Justice, “Bildstrom”)

The German Bundesgerichtshof (Federal Court of Justice, FCJ) has issued the decision “Bildstrom” (judgment of 26 February 2015, docket no. X ZR 37/13) dealing with the patentability of a system and a method for displaying an image stream.

The attacked patent EP 1474927 concerns a technical teaching for displaying an image stream, wherein at least two subset image streams are displayed simultaneously and the subset image streams are created from one original image stream. The original image stream may for example be recorded by a swallowable capsule and two subset image streams may e.g. show every second frame of the original image stream in original speed so that each frame is displayed [...]

Concerns over proposed patent exemption for physicians and pharmacies in Switzerland

By Mark Schweizer, Reinhard Oertli and Simon Holzer

The Swiss lawmaker plans to introduce a new exemption from patent protection for physicians and pharmacies. The new exemptions aims to protect physicians and pharmacies from being involved in patent disputes concerning second medical use claims according to the EPC 2000 (purpose-limited product Claims).

From Swiss-type claims to purpose-limited product claims

As is well know, the Enlarged Board of Appeal of the European Patent Office held in a widely reported decision that under the European Patent Convention in the version adopted in 2000, which entered into force on 13 December 2007, claims to a second or further medical use of known phar [...]

Fordham Conference 2015 – US Patent Law Developments

Dimitrios T Drivas (White & Case) gave the speedy run down on the following points and cases, which some might find useful for following up on points of interest:

Supreme Court

The decision that in exceptional cases reasonable attorney’s fees may be paid to the prevailing party (an exception to the rule that each party bears its own costs in the USA). The exception was interpreted to mean some sort of ‘bad faith’ by the Federal Circuit overturning the District Court decision. The Supreme Court found that the District Court’s decision should be given due deference.

‘Indefiniteness’ has gone from ‘insoluble ambiguity’ to ‘fails to inform with reasonable certainty’.

Induced infringement (Limel [...]

Cloned Sheep And Other Patent Eligibility Issues In The U.S.

Last week, in In Re Roslin Institute, the U.S. Court of Appeals for the Federal Circuit held that cloned cattle, sheep, pigs and goats are non-patent eligible subject matter under 35 USC § 101. While the result that these cloned animals cannot be patented may not be surprising, the basis for the court’s finding–that the claimed subject matter was ineligible under the “product of nature” doctrine, has some scratching their heads. A more logical way to understand the decision is to read the court’s holding as finding that the cloned animals are non-patent eligible subject matter because they cannot be distinguished from naturally occurring animals.

The patent application at iss [...]

The Court of Turin on the patentability of software

By ruling of 21 February 2014, the Court of Turin decided a case between the US corporation Rovi and a number of Italian consumers electronics manufacturers. These had produced / imported set-top-boxes equipped with Electronic Programme Guides (EPG) that allegedly made use of the Rovi EPG patents, although without being covered by the Rovi licensing scheme. The Turin Court ruling is interesting as it tackles – one of the very few in the Italian case law – the issue of software patentability, reaching conclusions opposite to those of the UK courts in the Rovi versus Virgin Media saga.

The case had commenced with the filing by the Italian manufacturers of a nullity action against patents [...]

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