IP Practitioners — Are You Ready For 2014?

Like 2013, 2014 promises to be an exciting year for intellectual property law.

The United States Supreme Court has at least two noteworthy intellectual property cases slated for the new year. As we reported, on December 6, 2013, the Supreme Court granted certiorari in Alice Corp. Pty. Ltd. v. CLS Bank Int’l. et al., 13-298. The Alice case concerns the patentability of a computer software program used to facilitate financial transactions. Sitting en banc, the Federal Circuit split 5-5 to affirm the district court’s decision and found Alice’s patents ineligible for protection under 35 U.S.C. § 101, a fractured opinion that left lawyers and their clients uncertain about which types of software patents are patentable. Hopefully, the Supreme Court will provide clarity. Additionally, in February, the Supreme Court will hear oral argument in Octane Fitness v. Icon Health Fitness, 12-1184, a case considering whether the Federal Circuit’s promulgation of a two-part test for determining whether a case is “exceptional” under 35 U.S.C. § 285 improperly appropriates the district court’s discretionary authority to award attorney fees to prevailing accused infringers. The case will be carefully followed by critics of the Federal Circuit’s test who argue it contravenes statutory intent and Supreme Court precedent. Finally, the Supreme Court will be issuing a decision in MedImmune, Inc. v. Boston Scientific Corp., 12-1128. The issue in MedImmune involved the burden on a licensee bringing a declaratory judgment action under MedImmune, Inc. v. Genentech, Inc. Specifically, whether the plaintiff licensee bears the burden to prove that its products do not infringe the patent or whether the patentee bears the burden to prove infringement.

On the legislative front, March 16, 2014, will mark the one year anniversary of the implementation of the first-to-file rule of the America Invents Act. It has been speculated that the upward trend in the number of patent filings that took place in 2013 will continue in 2014, resulting in more patent litigation. Also in 2014, the FDA will receive an additional $821,453,000 in total funding and Patent Troll Legislation will be making its way through Congress. We will also continue to see more activity within the biosimilars landscape.

2014 will also prove a particularly interesting year in pharmaceutical patents as a number of key drugs will lose their patent exclusivities before year end. Teva Pharmaceutical Industries’ top seller Copaxone, a multiple sclerosis treatment drug, loses patent exclusivity in May 2014. AstraZeneca’s acid-reflux treatment drug Nexium will also come off patent in May and it will also be losing its method-of-use patent on its drug Symbicort in 2014. Additionally, Novartis will be losing exclusivity on both Sandostatin LAR and Exforge while Allergan will be losing exclusivity on Restasis and Lumigan. Finally, Warner Chilcott will be losing its exclusivity on three successful drugs, Actonel, Asacol HD and Loestrin 24 Fe.

Here at IP Law Alert, 2014 will bring about a changing of the guard as Charles H. Chevalier will take over as Editor-In-Chief.

Gibbons will continue to monitor these and other IP law developments. We wish all of our readers a Happy New Year!

Owen J. McKeon, a former Director  in the Gibbons Intellectual Property Department, and Jillian A. Centanni, a former Associate in the Gibbons Intellectual Property Department, co-authored this post.
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