Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article about a bill that “would stop pharma companies from using lawsuits to block the sale of a competing generic drug”;
- another article about a party “ask[ing] the US Supreme Court to clarify its rule for when an idea is considered abstract and thus not eligible to be patented”; and
- a blog post about “U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal . . . correcting the Patent Trial and Appeal Board (PTAB) on its approach to the ‘compelling merits’ analysis.”
Kelly Lienhard wrote an article for Law360 about a bill that “would stop pharma companies from using lawsuits to block the sale of a competing generic drug over a Risk Evaluation and Mitigation Strategy, or REMS, program patent.” Lienhard explained that, “[u]nder the new legislation, companies would still be able to sue for patent infringement, but taking legal action won’t block competing drugs from the market while the suit is ongoing.” Lienhard further noted that “[t]he bill would also allow the U.S. Food and Drug Administration to give immediate approval to drugs – instead of having to wait 30 months – if the only thing blocking the new treatment is a REMS program.”
Michael Shapiro authored an article about “[a]dhesive and label manufacturer Avery Dennison Corp. ask[ing] ] the US Supreme Court to clarify its rule for when an idea is considered abstract and thus not eligible to be patented.” Shapiro reported that Avery Dennison Corp. “said the US Court of Appeals for the Federal Circuit was wrong when it rejected its argument that a patent it allegedly infringed was directed to an abstract idea.” Shapiro highlighted how Avery Dennison Corp. has “urged the high court to take up the case on the grounds of widespread confusion over the Alice test.”
Eileen McDermott wrote a blog post about “U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal . . . issu[ing] a second Direct Review decision correcting the Patent Trial and Appeal Board (PTAB) on its approach to the ‘compelling merits’ analysis outlined in her June 2022 Guidance Memo.” McDermott reported how “Vidal pointed to her Guidance Memo on the ‘compelling merits’ analysis and her decision in OpenSky v. VLSI, which she said both take ‘a holistic view of whether efficiency and integrity of the system are best served by denying or instituting review.’” McDermott also highlighted how she took the position that “the Board shall not deny institution if the record meets the compelling merits standard,” noting Vidal’s statement that “‘compelling meritorious challenges will proceed even when district court litigation is proceeding in parallel.’”