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
- Unveiling The Untapped Potential of Brazil’s Solar Energy Market
- AI Armor: Learn How to Harness AI to Invest in Your Company’s Future
- Other Barks & Bites for Friday, April 19: European Court Rejects Pablo Escobar Trademark; Federal Agencies Launch Anti-Competitive Healthcare Practices Portal; and Reddit Cracks Down on Copyright Infringement
- Thoughts on the USPTO’s NPRM: Not Bad But the Big Challenges Remain
- Patent Filings Roundup: Slow Week in PTAB and District Court, Ideahub Subsidiary Challenges Instituted; Patent Armory Continues the Offensive