Sunday, February 14, 2016

My January 2016 talk about 112 and 102b (BioSig v. Nautilus and Medicines v. Hospira)

On January 14, 2016 I had the good fortune to be invited to speak at the Bloomberg BNA Conference "Patent Litigation in the New Era," organized by my former student Brian Pandya and his partner Jim Wallace. I was asked to speak on two topics: (1) indefiniteness under 35 USC 112 after the Supreme Court's 2014 decision in BioSig v. Nautilus and (2) the 35 USC 102b issue in The Medicines Company v. Hospira.

The slides from my talk are now available at - shorthand for .

The 102(b) appeal in Medicines v. Hospira will soon be heard en banc by the Federal Circuit. Cross-appeals from the Delaware District Court's bench trial opinion were decided by a panel of the Federal Circuit in July, 2015. The panel determined, among other things, that Patent Owner (PO) Medicines had violated the on-buy bar, as I chose to call it in my talk. PO petitioned for rehearing en banc and its petition was granted on November 12, 2015. Accused Infringer (AI) Hospira was ordered to file the first brief because it was appellant on the 102b issue. After a joint request for extension, the deadline for that brief was January 11, 2016, three days before my talk. Medicines brief is due February 24. I believe that amicus briefs in support of neither party or Hospira were due January 18 and amicus briefs in support of Medicines are due March 2. Under the Order granting the petition for rehearing, amicus briefs "may be filed without consent of the parties and leave of court."

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