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Product-By-Process Claim Construction: Conflict in Federal Circuit Precedent Remains Unresolved
Construing claims that use the process by which a product is created to define the invention ' that is, product-by-process claims ' was not made any easier by the Federal Circuit's recent decision in SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 (Fed. Cir. 2006). The Federal Circuit again declined to resolve the long-standing conflict between two decisions ' the 1991 decision in Scripps Clinic & Res. Foun. v. Genentech Corp., 927 F.2d 1565 (Fed. Cir. 1991), which held that product-by-process claims should not be limited by the process steps in the claims, (i.e., such claims cover an identical end-product regardless of the steps used) and the 1992 decision in Atlantic Thermoplastics Co. v. Faytex Corp., 970 F.2d 834 (Fed. Cir. 1992), which held that product-by-process claims should be construed to only cover the end-product if produced by the specifically claimed process steps. As explained below, this state of affairs warrants that patent applicants and litigants stay tuned to the case law and adjust their respective claim drafting and analysis strategies accordingly.
The SmithKline Case
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.