Here’s the latest.

Fed. Circ. Again Says No State Sovereign Immunity In IPRs

Reported by Tiffany Hu at Law360

The Federal Circuit issued an opinion on Thursday affirming the decision in favor of Baylor College of Medicine’s challenges of the University of Texas’s patents through IPRs. Tiffany Hu summarizes the case where the University of Texas argued that the Federal Circuit misapplied its precedent in a previous similar decision involving the University of Texas and the University of Minnesota. The Federal Circuit did not agree that the purpose of the proceeding should warrant the application of state sovereign immunity.

[T]he panel was unpersuaded and affirmed the PTAB’s decision, saying that “as UT also recognizes, ‘[t]his panel is bound by the University of Minnesota decision.”

For more information, see our coverage.

Federal Circuit Tries to Wrap Its Arms Around Functional Biotech Patent Claims

Reported by Scott Graham at National Law Review

Oral arguments took place in Amgen Inc. v. Sanofi where the judges seemed to lean towards Amgen according to Scott Graham.

Judge Alan Lourie . . . told Amgen’s attorney, MoloLamken partner Jeffrey Lamken, that the company’s claims are written so broadly that they appear to require undue experimentation. “And that’s the key factor in enablement. So you’ve got a pretty uphill battle,” Lourie said.

However, Judge Lourie took the opportunity to question the Federal Circuit’s precedent regarding enablement.

“I find it very hard to distinguish this case from Wands, but I also find it very hard to reconcile Wands with Enzo and Wyeth and those cases. Can you help me?” [Judge Hughes] asked.

Amgen and Sanofi patented similar antibodies with the same cholesterol-reducing action, but Amgen also patented the broader genus indicating that competitors could simply create their own unique antibodies by using Amgen’s research. A jury had found in favor of Amgen, but the district judge reversed the verdict on enablement grounds.

Del. Chief Urges Creativity When Litigating Patent Eligibility

Reported by Dani Kass at Law360

Chief Judge Leonard Stark of the District of Delaware commented the approaches that he has seen to resolving patent eligibility issues during a panel at the Annual Berkeley-Stanford Advanced Patent Law Institute. Dani Kass recaps Judge Stark’s comments where he sought creativity from the lawyers practicing in his court.

“Come to the court with a creative approach and say how quickly and efficiently can we get this to [summary judgment], ‘How could I persuade you, judge, that everything else in this case should stay on hold while we take some limited, targeted discovery, maybe some super early limited claim construction?'” he said.

Judge Stark also commented on the Federal Circuit’s precedent regarding patent eligibility and the need for a more consistent and clear framework .

“[The Federal Circuit says], ‘Look at our cases and decide which one your case is most like factually,’ and that is not an intellectually satisfying way of resolving an important issue, particularly when the Federal Circuit’s decisions are inconsistent factually,” Powers said.

In addition to these statements, Judge Stark also elaborated on his court has adjusted to hearing cases during the pandemic