Patently-O Bits and Bytes No. 132

  • Ariad v. Eli Lilly (Written Description): Ariad has filed its opening brief in the en banc Federal Circuit challenge to the statutory basis for a written description requirement that is separate and distinct from enablement requirement. The patentee’s strongest arguments are textual and historic. Although done with tact and persuasive skill, the brief asks the court to read the statute: “The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.” [File Attachment: Ariad v. Lilly Plaintiffs-Appellees Principal Brief.pdf (509 KB)]
  • Forest Group v. Bon Tool False Marking Case: The question on appeal is whether mass production of a falsely marked product constitutes a single instance of false marking. If the Federal Circuit agrees, the false marking statute will continue to have no impact because damages are limited by statute to $500 or less per offense. Judges Rader, Plager, and Moore will likely issue a decision in January. In oral arguments, the court struggled with the potential problem of “marking trolls” — suggesting that an amicus in this case is “pretty close to that.”
  • USPTO Website: Out of Beta
  • Patent Reform: Senator Leahy has suggested a Senate debate on patent reform “before the end of the year.”
  • Board of Patent Appeals: Numbers are in for FY2009 (ending September 30, 2009). 15,349 appeals docketed; 6,757 appeals completed; 12,489 appeals pending at the end of the FY. The Board took heroic efforts to increase its throughput by over 35% in FY2009. However, the Board was already operating in a deficit and the number of cases received in FY2009 is more than double that of FY2008.
  • Board of Patent Appeals II: Despite the backlog, the Board reports an average pendency of only 7.7 months (calculated from assignment of appeal number to decision date).
  • Patent Law Jobs: