January 7, 2022

Federal Circuit Summaries For The Week Ending January 7, 2022

Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc., No. 2021-1070 (January 3, 2022) (precedential) (2-1); Patent No. 9,187,405

Key points:

• Case law does not require literal description in a priority specification of every claim limitation, including negative limitations; thus, adopting a bright-line rule that “the mere absence of a positive recitation is not a basis for an exclusion,” as recited in the MPEP, is improper. Instead, what is critical in the written description inquiry is the perspective of a POSITA in reading the specification as to the claim limitation in question.

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