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Always Administer the Drug in Method of Treatment Claims

  • 06.12.12
  • Peter A. Jackman, Suresh B. Pillai
  • Maryland State Bar Association IP Section Website

In King Pharmaceuticals, Inc. v. Eon Laboratories, Inc., 616 F.3d 1267 (Fed. Cir. 2010), the Federal Circuit affirmed a grant of summary judgment of invalidity of claims directed to methods of treatment as inherently anticipated by the prior art under 35 U.S.C. § 102. The Federal Circuit, however, rejected the district court’s finding of invalidity of certain claims under 35 U.S.C. § 101, and in doing so provided further comment on whether method of treatment claims satisfy the requirements of 35 U.S.C. § 101 post-Bilski v. Kappos, 130 S. Ct. 3218 (2010). Although the Federal Circuit found the claims of both patents invalid, the court did provide guidance that should allow prospective patentees to avoid the same fate.

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