Fresh From the Bench: Latest Federal Circuit Court Case
CASE OF THE WEEK
Novartis Pharms. Corp. v. Accord Healthcare, Inc., Appeal No. 2021-1070 (Fed. Cir. June 21, 2022)
In this week’s Case of the Week, the Federal Circuit granted panel rehearing of and vacated its prior decision in Novartis Pharms. Corp. v. Accord Healthcare, Inc., 21 F.4th 1362 (Fed. Cir. 2022). Our write-up of that opinion can be found here. Previously, the Court had affirmed the district court’s decision that Novartis’s patent claims directed to sclerosis treatments were supported by adequate written description, and its subsequent bench trial ruling that the claims were infringed by petitioners HEC Pharm Co., Ltd. and HEC Pharm USA Inc. (HEC).
As relevant to the issues on rehearing, the Court had found that a negative limitation excluding use of a “loading dose” in the claimed treatment regime was supported by adequate written description, notwithstanding that the patent’s specification was silent as to the presence or absence of a loading dose. (A “loading dose” is a typically higher dose administered initially to elevate the patent’s medication levels.) In reaching this conclusion, the Court credited expert testimony that a skilled artisan would understand the specification to disclose a regime excluding a loading dose.
Edited by Nika Aldrich and Scott D. Eads, Schwabe, Williamson & Wyatt
ALSO THIS WEEK...
Centripetal Networks, Inc. v. Cisco Systems, Inc., Appeal No. 2021-1888 (Fed. Cir. June 23, 2022)
In this case, the Court of Appeals for the Federal Circuit found a judge disqualified from a dispute between Centripetal Networks, Inc. and Cisco Systems, Inc. After the judge realized his wife owned $4,687.99 in Cisco stock, he deposited the stock in a blind trust. First, the Federal Circuit found that although placing stock in a blind trust deprived the judge’s wife of control, it did not deprive her of ownership, and therefore was not “divestiture” under 28 U.S.C. § 455(f), as would be needed to cure a § 455(b)(4) impermissible financial interest. Second, turning to the appropriate remedy, the Federal Circuit found vacatur appropriate. Among other factors, the court considered the risk that would be caused by allowing the judge’s prior decision to stand, both in signaling to other judges that sitting on a case where a family member had a financial interest was not a serious issue, and in undermining public confidence in the judicial process—particularly given increasing concern within the public and judiciary caused by reports of judges hearing cases in which they have a financial interest. Thus, the Federal Circuit found the judge’s violation of § 455(b)(4) was not a harmless error, and vacated and remanded all orders and opinions entered after the date the judge became aware of his wife’s financial interest.
The opinion can be found here.
By Tyler Hall