Courts have long held that “an old product made by a new process is not novel and cannot be patented.” The validity of product claims have generally focused on the product and not the particular process of making the product, as illustrated in Biogen MA Inc. v. EMD Serono, Inc., 976 F.3d 1326 (Fed. Cir. 2020). However, in biotechnology (e.g., recombinant and cellular products), the process or source from which a product is produced can confer distinct, yet difficult to define, structural and/or functional differences. Here, we discuss exemplary cases, and assess whether process-related limitations can still distinguish a claimed product over the art in certain circumstances.
Recent Posts
- Life Sciences Masters Panelists Lament Mounting Policy Uncertainty
- Interveners Left Out in the Cold: EPO’s G 2/24 Tightens Rules for Late Parties to Patent Challenges
- Massie to Reintroduce RALIA in Bid to Abolish PTAB
- Reddit Dubs Perplexity AI and Data Scraping Companies ‘Would-Be Bank Robbers’
- CAFC Gives Centripetal Another Shot at PTAB in Case Tied to APJ’s Alleged Bias