Amgen's Enbrel® monopoly is currently protected by two antibody patents that are not scheduled expire for another 10 years. In a recent case involving Amgen, Amgen v. Sanofi, the Federal Circuit vacated an injunction Amgen obtained against a competing drug to its new PCSK9-inhibitor. The Court’s decision turned on a finding that the jury was improperly instructed on the criteria for invalidating a patent directed to an antibody for lack of written description. Thus, will the precedent recently established in Amgen’s PCSK9 case doom the validity of its patents covering Enbrel®? There are likely two ways that the decision in Amgen v. Sanofimade a validity challenge to Enbrel®’s patents easier. See our recent publication in IPWatchdog.
Read MoreVenue arguments unsupported by a plausible claim that defendant has a physical place of business in the district (in a district where defendant is not incorporated) are likely losers -- and may not even open the door to jurisdictional discovery.
Read MoreThe problem with these arguments is that even if they are all true (which is questionable,) they are besides the point. The issue at stake is whether renting sovereign immunity to evade having to defend the validity of your patent is either permissible or should be permissible. Indeed, Judge Bryson admonished Allergan for being “conspicuously silent about the broader consequences of the course it has chosen.” (Allegan v. Teva, Dkt. 522 at 4-5). Mr. Saunders op-ed in The Wall Street Journal is equally silent.
Read MoreViewed through that lens, the Respondents argue there is nothing unconstitutional about IPRs. Congress was expressly given the power to grant patents within the Constitution. Congress has delegated that power to a federal agency, namely, the USPTO. Any “right” to a patent therefore derives directly from a Federal Government action, and by that token, it is a public right. In other words, patents do not embody a natural right of the inventor to exclude others from using his or her invention. Rather, a patent only exists because Congress has expressly provided for it.
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