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January 06, 2021


I'm not usually sympathetic to patentees in general, or dosing claims in particular, but in this one it does seem like the patentee got something of a raw deal.

For indefiniteness, just like for any other basis of invalidity, I thought it should still be the challenger's burden by clear and convincing evidence, but here CAFC seemed like it was going out of its way to be unsympathetic to the patentee. Conversely, it seemingly didn't require much of the challenger to carry it's burden.

Just as a matter of common vernacular, I don't think it's so implausible to say that a drug can "target" a particular physiological profile in the sense of being designed to produce that profile when administered. After all, don't we often say that drugs target a specific pathogen and/or area of the body, without that sounding absurd? If so, I think you can say a drug targets a profile too. Presumably one of skill would view it the same way, but this isn't my particular field.

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