Tag Archives: Federal Circuit

Teva Liable for Induced Infringement of Eli Lilly’s Methods of Administering Pemetrexed (ALIMTA®)

Eli Lilly & Co. v Teva Parenteral Meds., Inc. (Fed. Cir. No.: 15-2067); January 12, 2017
CAFC Opinion PDF

  • The Federal Circuit affirmed the District Court’s finding that Teva is liable for induced infringement of Eli Lilly’s US Patent No. 7,772,209 claiming methods for administering Pemetrexed.
    • The Federal Circuit addressed the issue of induced infringement and direct infringement by physicians even though one of the method steps is performed by patients. The Federal Circuit also addressed  indefiniteness, obviousness, and obviousness-type double patenting.
  • Eli Lilly markets pemetrexed under the brand name ALTIMA®
    • Pemetrexed is an antifolate that kills cancer cells by inhibiting the function of folates, a class of nutrients necessary for cell reproduction. The vitamin pretreatments reduce the toxicity of pemetrexed.
    • ALIMTA® is used to treat certain types of lung cancer and mesothelioma.
  • US Pat. No. 7,772,209 Claim 1:  A method for administering pemetrexed disodium to a patient in need thereof comprising administering an effective amount of folic acid and an effective amount of a methylmalonic acid lowering agent followed by administering an effective amount of pemetrexed disodium, wherein the methylmalonic acid lowering agent is selected from the group consisting of vitamin B12, hydroxycobalamin, cyano-10-chlorocobalamin, aquocobalamin perchlorate, aquo-10-cobalamin perchlorate, azidocobalamin, cobalamin, cyanocobalamin, or chlorocobalamin.

Reuters Article: “Eli Lilly defeats Teva Appeal over Alimta Cancer Drug”

Petitioner Must Prove Injury to Have Standing to Appeal an IPR Decision

January 11, 2017

Phigenix v. ImmunoGen (Fed. Cir. 2017) (Wallach, J)

  • Even though § 141(c) allows a party to appeal a PTAB’s IPR decision, the statute does not necessarily establish Article III standing.
    • One of Article III’s requirements is proving Injury-in-Fact.
  • Even if a petitioner loses an IPR challenge (i.e., Patent is still valid), the Petitioner may still not have standing if the petitioner has not suffered any damages yet. (For Example, the patent owner hasn’t sued the petitioner yet for infringement.)
  • Here, Phigenix [petitioner] lost an IPR (i.e., Immunogen [patent owner] won with a ruling of non-obviousness). But Phigenix did not have standing to appeal the IPR loss to the Federal Circuit because Phigenix did not have standing in part because they have not suffered any injury/damages yet.
    • Phigenix did not argue that it risked infringing ImmunoGen’s patent.  Phigenix argued instead that it suffered “actual economic injury” because the mere existence of ImmunoGen’s patent increased competition between itself and ImmunoGen. The Federal Circuit did not find Phigenix’s argument persuasive.

Claims:

Claim 1:  An immunoconjugate comprising an anti-ErbB2 antibody conjugated to a maytansinoid, wherein the antibody is huMAb4D5-8.

Claim 2:  The immunoconjugate of claim 1, wherein the maytansinoid is DM1 having the structure:

Related Blog Posts:

Patently-O Blog Post on Phigenix v. ImmunoGen (Fed. Cir. 2017)

PatentDocs Blog Post on Phigenix v. ImmunoGen (Fed. Cir. 2017)

Medgraph v. Medtronic

December 13, 2016

Precedential Opinion today from the U. S. Court of Appeals for the Federal Circuit:

MEDGRAPH, INC. v. MEDTRONIC, INC.; No. 15-2019 (Fed. Cir. Dec. 13, 2016)

The Federal Circuit panel affirmed the District Court’s dismissal of Medgraph’s claims of infringement. Earlier, the Federal Circuit en banc, in Akamai v. Limelight, broadened the law attributing third-party acts to an accused infringer to include occasions when an accused infringer “conditions participation in an activity or receipt of a benefit upon performance of a step or steps” of a claimed method. Rather than remand the case to the district court, the Federal Circuit panel said that Medgraph did not produce facts meeting even the new more broad standard.

Link to CAFC Opinion PDF:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-2019.Opinion.12-9-2016.1.PDF
Link to Finnegan’s Federal Circuit IP blog post:
“Change in Law Does Not Always Compel Remand”