Hot, hot, hot…
July 19, 2004 on 10:16 pm | In Current Affairs |Hal Wegner’s 18 Hot Issues in IP (see my prior post)– A Checklist has grown to 20 (two changed, two new).
(4) Antitrust Violation for “Reverse Payment” ANDA Litigation Settlement: Andrx Pharmaceuticals, Inc. v. Kroger Co., Supreme Court Docket No. 03-779, proceedings below sub nom In re Cardizem CD Antitrust Litig., 332 F.3d 896 (6th Cir. 2003). The Solicitor General has filed a brief advising against grant of certiorari diminishes the likelihood that this case will be taken up for the Fall 2004 term. A pdf copy of the government brief is available from - http://www.usdoj.gov/osg/briefs/2004/2pet/6invit/2003-0779.pet.ami.inv.pdf. But, the Solictor General disagreed with the Sixth Circuit holding that a “reverse payment” ANDA litigation settlement is a per se antitrust violation. Status: The Supreme Court is expected to issue its decision on grant of certiorari by the start of the Fall 2004 term in early October.
(12) Enzo “Written Description” (35 USC § 112, ¶ 1) as a “Possession” Requirement: Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916 (Fed. Cir. 2004)(Lourie, J.). New Development: On July 2, 2004, the court in a 7-5 vote denied en banc rehearing from the controversial Enzo ruling in Rochester v. G.D. Searle & Co., 358 F.3d 916 (Fed. Cir. 2004)(Lourie, J.). See Stephen B. Maebius, Sean A. Passino & Harold C. Wegner, “Possession” Beyond Statutory Enablement, The Remains of the Day after Rochester, Foley & Lardner IP Roundtable, July 21, 2004, Osaka, Japan, http: //www.foley.com/files/tbl_s88EventMaterials/FileUpload587/106/Rochester.pdf. Status: Petition for certiorari to the Supreme Court expected with decision on grant likely during the middle of the Fall 2004 term.
(19) Is an EST gene fragment patent-eligibility under §§ 101, 112 utility standards: The Federal Circuit may very well have the opportunity to rule on whether an EST, without a special, specific utility statement, meets the statutory requirements. An appeal is possible in Ex parte Fisher, App. No. 2002-2046 (PTO Bd. App. & Int. March 31, 2004).
(20) New Executive and Federal Circuit openings: (a) The Federal Circuit: Two to four openings are expected by mid-2006. (b) The PTO: The Commissioner for Patent five year term expires in 2005 independent of the party in power.
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