Following on the heels of the Federal Circuit en banc opinion in Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., Professor Kevin Collins asks "What next?"
Before Ariad, the uncertainty channeled much of the scholarly conversation about the written description doctrine into a binary debate, pitting those who it applied to original claims versus those who believed that it did not. After Ariad, the stage is now set for greater participation in more nuanced conversations about the role that the written description requirement does and should play in curtailing patent protection. Ariad may end one facet of the debate over written description, but it would be a lost opportunity if Ariad were interpreted to end the debate over written description more broadly and cut off these more nuanced conversations.
In this short essay, Professor Collins suggests that patent law scholarship should adopt a "trans-doctrinal approach" directed to the broader purposes and limitations of patent law rather than being confined to doctrinal silos. The essay indicates that this holistic approach may also be helpful in explaining a perception that patent law varies greatly according to the area of technology. [Download Collins.Ariad]
Read: Kevin Collins, An Initial Comment on Ariad: Written Description and the Baseline of Patent Protection for After-Arising Technology, 2010 Patently-O Patent L.J. 24.