Biotechnology Patent Law Top Ten of 2020: Valeant Victorious, Falling Eagle, and Successful Slayback

64 Pages Posted: 27 May 2022

See all articles by Andrew W. Torrance

Andrew W. Torrance

University of Kansas School of Law; MIT Sloan School of Management

Kevin Noonan

McDonnell Boehnen Hulbert & Berghoff

Date Written: 2022

Abstract

One of the most famous trilogies ever published ends with the hero, Frodo the hobbit, sailing aboard an elven ship from the Grey Havens of Middle Earth to the Undying Lands in the west. Despite this being the third in a series of “Biotechnology Patent Law Top Ten” articles, in this trilogy the world of biotechnology patent law has no leading hero, no ultimate destination, nor any final resolution of issues.

To the contrary, this exciting area of law and technology continues to witness winners and losers in myriad battles across a wide doctrinal theatre of legal war with no end in sight. It is true that some in biotechnology view the uncertainty surrounding the scope of patentable biotechnological subject matter under 35 U.S.C. § 101 as a metaphorical ring they wish the fires of Mount Doom could destroy (or at least clarified by the United States Supreme Court). Others consider the ongoing patent disputes between the University of California, University of Vienna, and Emmanuelle Charpentier (often referred to collectively as “CVC”) and the Broad Institute of MIT and Harvard to be as consequential as the Battle of the Five Armies. We will not even try to compare the endless Abbreviated New Drug Application (“ANDA”) struggles between brand pharmaceutical companies and their upstart generic drug firm rivals using a literary device derived from The Lord of the Rings.3 Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens.

As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly otherswe did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider to be the top ten biotechnology patent law decisions of 2020. We discuss these decisions below.

Keywords: biotechnology patent law, biotechnology, patent, 2020, litigation, enablement, novelty, obviousness, written description, best mode, doctrine of equivalents, interference, prosecution history estoppel, infringement, inducement, ANDA, patentable subject matter, common ownership, CRISPR, CoVID-19

JEL Classification: KOO, K1, K10, K11, K19, K2, K20, K21, K22, K23, K29, K3, K30, K32, K33, K39, K4, K40, K41, K42, K49

Suggested Citation

Torrance, Andrew W. and Noonan, Kevin, Biotechnology Patent Law Top Ten of 2020: Valeant Victorious, Falling Eagle, and Successful Slayback (2022). 8 Tex. A&M J. Prop. L. 409-472 (2022), Available at SSRN: https://ssrn.com/abstract=4104541

Andrew W. Torrance (Contact Author)

University of Kansas School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States

MIT Sloan School of Management ( email )

100 Main Street
Cambridge, MA 02142
United States

Kevin Noonan

McDonnell Boehnen Hulbert & Berghoff ( email )

300 S Wacker Dr
#3100
Chicago, IL 60606
United States
3129132145 (Phone)
3129130002 (Fax)

HOME PAGE: http://https://www.mbhb.com/

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