Silence isn’t always golden – Patent specification doesn’t adequately describe negative limitation

Description

Abstract: If at first you don’t succeed, try again. The old bromide proved surprisingly meaningful for a pharmaceutical company challenging a competitor’s patent on a treatment method. The claim that the patent lacked an adequate written description of the method’s “negative limitation” was initially rejected by a three-judge panel of the U.S. Court of Appeals for the Federal Circuit. This article looks at how the tables turned when the company requested a rehearing before the panel after one judge retired and was replaced. Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc., No. 21-1070 (Fed. Cir. June 21, 2022).