By
Donald Zuhn --
The
Court of Appeals for the Federal Circuit today decided
that the appeal in Ariad Pharmaceuticals,
Inc. v. Eli Lilly and Co. warrants en
banc consideration. In June, Ariad
filed a petition for rehearing of the decision issued by the Federal Circuit on
April 3 (see "Ariad Files
Petition for Rehearing in Ariad v. Lilly"). A panel consisting of Circuit Judges
Linn, Prost, and Moore -- with Judge Moore authoring the opinion -- reversed the
District Court's denial of Lilly's motion for JMOL in view of a jury verdict of
infringement and validity of the asserted claims, and affirmed the District
Court's ruling that Lilly failed to establish the affirmative defense of
inequitable conduct (see Patent Docs
report).
In the Court's per curiam order, it noted
that the panel that heard the appeal considered Ariad's petition for rehearing,
and thereafter requested a response from Defendant-Appellant Lilly and granted
Novozymes A/S's motion for leave to file an amicus
brief. The petition, response,
and amicus brief were then referred
to the other Circuit Judges, a poll on whether to rehear the appeal en banc was requested and taken, and the
Court decided to hear the appeal en banc. The parties have been asked to file
new briefs addressing the following issues raised in Ariad's petition:
a. Whether 35 U.S.C. § 112, paragraph 1,
contains a written description requirement separate from an enablement
requirement?
b. If a separate written description requirement
is set forth in the statute, what is the scope and purpose of the requirement?
Plaintiffs-Appellees
Ariad, Massachusetts Institute of Technology, the Whitehead Institute for
Biomedical Research, and the President and Fellows of Harvard College must file
their brief by October 5, 2009, and Lilly must file its response 30 days from
the date of service of Plaintiffs-Appellees' brief. Plaintiffs-Appellees' reply would be due 15 days from the date
of service of Lilly's response.
The Court noted that it would entertain briefs of amici curiae, and invited the United States to submit an amicus brief.
Comments