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
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- LG’s Recent Infringement Fight Against TCL Could Take Some Tips from DivX’s Approach
- In re Killian: Harvey the Rabbit Comes to the Federal Circuit
- California Court Holds Pinterest’s Display of User-Uploaded Works Near Ads are Protected by DMCA Safe Harbor
- Hirono and Tillis Give Vidal One Month to Answer Questions on Abuse of PTAB Process
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- CAFC Gives Google Second Shot at PTAB in Challenge of Communications Patents