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Centocor v. Abbott Labs: Must You Only Preach What You Practice?

By Irah Donner, Matthew Siegal and Clayton McCraw

The Federal Circuit's decision on Feb. 23, 2011 in Centocor Ortho Biotech., Inc. v. Abbott Labs., __ F.3d __, 2011 WL 635291 (C.A. Fed. (Tex.) 2011), vacated a $1.67 billion verdict based on invalidity for insufficient written description. The case provides an example of when technology can be so complicated or unpredictable that the specification does not adequately explain how to practice the claimed invention.

Specifically, Centocor held that the written description of U.S. Patent No. 7,070,775 (“the '775 patent”) describing a mouse antibody and chimeric antibody having a mouse variable region was inadequate to show possession of an invention relating to human antibodies that could neutralize human TNF-a for use as a drug. The court also found that generating human antibodies with the properties claimed would not have been within the skill of one of ordinary skill in the art at the time of the original invention. Rather, the court held that the claimed antibody was merely a “wish list” of desired properties.

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