Category Archives: Defenses

FDA Request for Justification Found to Provide a Mere Research Suggestion—Not Conception of Claimed Formulation

Author: Thomas J. Sullivan
Editor: Jeff T. Watson

In Cumberland Pharmaceuticals Inc. v. Mylan Institutional LLC, Nos. 16-1115, -1259 (Fed. Cir. Jan. 26, 2017), the Federal Circuit affirmed the lower court’s holding that a patent covering a chelating-agent-free drug formulation was not derived from someone at the FDA.

Mylan’s derivation argument centered around communications between the inventor and the FDA regarding Cumberland’s application to market a pharmaceutical formulation that included the chelating agent EDTA. Specifically, the FDA requested that Cumberland provide justification for including EDTA in the formulation. Mylan argued that the FDA request (along with other exchanges) established conception of the claimed chelating-agent-free formulation by the FDA. Continue reading

Tagged ,

Affirmed Preliminary Injunction Leaves Water Balloon Infringer All Wet

Authors: Jonathan J. Fagan
Editor: Kevin D. Rodkey

In Tinnus Enterprises, LLC v. Telebrands Corp., No. 16-1410 (Fed. Cir. Jan. 24, 2017), the Federal Circuit affirmed the district court’s grant of a preliminary injunction, finding no clear error in that decision.

Tinnus sued Telebrands for infringement of Tinnus’s patent directed to a hose attachment that fills multiple water balloons at once. Tinnus moved for a preliminary injunction, which was granted by the district court. Continue reading

Tagged , , ,

Graphical Indicator Patent Gets “Definite” Win Under § 112

Authors: Shayda Shahbazi
Editor: Kevin D. Rodkey

In Sonix Technology Co., Ltd. v. Publications International, Ltd., No. 16-1449 (Fed. Cir. Jan. 5, 2017), the Federal Circuit reversed the district court’s decision that the claim term “visually negligible” rendered the claims indefinite.

Sonix brought suit against Publications International, alleging infringement of U.S. Patent No. 7,328,845, which is directed to using a “graphical indicator” to encode information on the surface of an object that can be read using an optical device to output additional information. The asserted claims of the ’845 patent recite that the indicator is “visually negligible.” The district court granted summary judgment, finding the term “visually negligible” indefinite, concluding that it relied on the user’s perception with no objective standard to measure the scope of the term. Continue reading

Tagged