This morning the Federal Circuit issued a precedential opinion in a patent case appealed from the District of Delaware. The opinion addresses whether the district court erred in finding that a patent did not fail patent law’s written description requirement. Notably, Chief Judge Moore filed a dissenting opinion. Here are the introductions to the opinion and dissent.

Novartis Pharmaceuticals v. Accord Healthcare Inc. (Precedential)

HEC Pharm Co., Ltd. and HEC Pharm USA Inc. (collectively, “HEC”) appeal from a district court bench trial in which the court found that a patent assigned to Novartis Pharmaceuticals Corp. (“Novartis”), U.S. Patent No. 9,187,405 (“the ’405 patent”), is not invalid and that HEC’s Abbreviated New Drug Application (“ANDA”) infringes. HEC argues that the district court erred in finding that the ’405 claims do not fail the written description requirement of 35 U.S.C. § 112(a). Because we do not discern any clear error in the district court’s decision, we affirm.

MOORE, Chief Judge, dissenting.

The majority dramatically expands a patentee’s ability to add, years after filing a patent application, negative claim limitations that have zero support in the written description. By doing so, it contradicts our well-established precedent and nullifies the Patent Office’s guidance in the Manual of Patent Examining Procedure (MPEP). I would reverse the district court’s finding that there exists written description support as it is inconsistent with our established precedent. Silence is not disclosure.