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.
Litigation
- Recapping Abitron at the High Court: The Long Arm of the…Lanham Act?
- Why the Supreme Court Should Weigh in on CMI Violations Under the DMCA
- Precooked Bacon, Artificial Intelligence Patents, and a Defense of the Common Law
- SCOTUS Kills Hope for Eligibility Certainty and Nixes Teva’s ‘Skinny Label’ Appeal
- Newman Says Moore’s Order Alleging She is Unfit for Court is ‘Riddled with Errors’
Recent Posts
- Iancu Agrees Key USPTO ANPRM Proposals Should be Handled by Congress
- The Intersection of NILS, NFTS, AI Creations, Big Data, and the Metaverse
- Understanding IP Matters: AI Bots, Creators, and Copyright — Learning to Live Together
- Clause 8: Joff Wild on Founding IAM for Chief IP Officers and EU Commission’s Anti-SEP Crusade
- UKIPO Issues New Trademark Guidance on NFTs, the Metaverse and Virtual Goods