Fresh From the Bench: Latest Federal Circuit Court Case

CASE OF THE WEEK

BASF Plant Sci., LP v. Commonw. Scientific and Indus. Research Org., Appeal Nos. 2020-1415, -1416, -1919, -1920 (Fed. Cir. Mar. 15, 2022)

Our Case of the Week, an appeal from the U.S. District Court for the Eastern District of Virginia, has something for everyone: questions of venue and statutory interpretation, invalidity and written descriptions, contracts and co-ownership of patents, and willfulness, injunctions, and royalty rates.

The appeals and cross-appeals have a long backstory. Commonwealth Scientific and Industrial Research Organisation (CSIRO) is a research arm of the Australian government, and owns six U.S. patents concerning engineering oils from plants.

By Tyler Hall

ALSO THIS WEEK...

Biogen International GMBH v. Mylan Pharmaceuticals Inc., Appeal No. 2020-1933 (Fed. Cir. Mar. 16, 2022)

In a precedential order, the Court denied en banc review of the panel’s precedential decision in this case, which we wrote up late last year here. The case involves the written description requirement, and whether it was satisfied where the patent specifically mentioned the key dosage value at issue. The panel upheld the district court’s judgment of invalidity. The en banc court denied review. However, Judge Lourie, joined by Judges Moore and Newman, issued a 15-page dissent. Judge O’Malley, who issued the dissent in the panel decision, retired last week. Although she participated in the vote by the en banc panel, she did not issue an opinion in relation to the en banc order.

The opinion can be found here.

By Nika Aldrich

Almirall, LLC v. Amneal Pharmaceuticals LLC, Appeal No. 2020-2331 (Fed. Cir. Mar. 14, 2022)

In an appeal from a final written decision of the Patent Trial and Appeal Board, the Federal Circuit Court affirmed that the disputed claims were unpatentable as they “would have been obvious over the cited prior art at the time the alleged invention was made.” The patent at issue related “to methods of treating acne or rosacea.” The Court first addressed Almirall’s argument that “the Board erred in presuming obviousness based on overlapping ranges because no single reference disclose[d] all of the claimed ranges.” Specifically, Almirall argued that the presumption of obviousness only applies “when a single reference discloses all claimed ranges.” The Court rejected this argument, explaining that “[t]he point of our overlapping range cases is that, in the absence of evidence indicating that there is something special or critical about the claimed range, an overlap suffices to show that the claimed range was disclosed in—and therefore obvious in light of—the prior art.” The Court then addressed Almirall’s argument that “the Board’s obviousness determinations were unsupported by substantial evidence.” The Court also rejected this argument, explaining that the Board’s holding was supported by substantial evidence. The Court affirmed the Board’s final written decision.

The opinion can be found here.

By Annie White

Edited by: Scott D. Eads and Nika Aldrich, Schwabe Williamson & Wyatt

Contributors: Tyler Hall and Annie White