A few notes:
- Is the writing on the wall for Beauregard? In last week's post, I noted that the fate of CRM claims is uncertain in light of the Bilski decision. In actuality, however, the Nuijten case may have more of a long term impact in view of current technology. As an astute reader reminded me, many (most?) software developers now distribute their programs as downloads, rather than by physical media such as CD or DVD. Even Microsoft Office, for example, is available as a download. Because Nuijten precludes patentability to such intangible "signals", it will take some creativity to find ways to claim these non-physical forms as apparati.
- Angiomax, ANDA and Accelerated Examination. Over at the America-Israel Patent Law blog, my brother, patent attorney Daniel Feigelson, writes of a fascinating tale behind the prosecution of U.S. Patent No. 7,582,787 to The Medicines Company, which issued last week and was promptly listed on the FDA Orange Book. Since Dan and I live at opposite ends of the patent world and the physical world (he's a chemist in Israel; I'm a computer guy in Chicago), I wouldn't have found this story on my own, but it has all the hallmarks of patents I'd otherwise write about on 12:01 Tuesday, including this discussion on the applicability of Accelerated Examination to pharmaceutical patents:
[A]ccelerated examination requests have begun to find favor with certain applicants and in certain technologies, specifically technologies where a product can quickly be brought to market, tends to be most valuable shortly after being introduced to the market, and loses commercial value over time. This is generally not the case with pharma patents, where there usually isn’t even a product on the market at the time the first patents covering the putative product are issued. Actually, given the way patent term adjustments under 35 U.S.C. §154 are calculated (which operate without respect to §156), it may even be to a pharma patentee’s advantage to have the USPTO drag its feet during prosecution, so as to get adjusted patent term at the back end of the patent life, when every additional day of exclusivity can be worth tens of millions of dollars.
In the present case, with Anigomax already being sold, and the expiration of TMC’s lone patent looming less than two years after the filing of the ‘553 application, it made sense to request accelerated examination. Until now, a generic drug company could have contented itself with filing an abbreviated new drug application (ANDA) that stated it would not sell its generic product until after the expiration of the ‘727 patent in March 2010, a so-called paragraph III certification. By having the ‘727 patent issue before the expiration of the ‘404 patent, and by immediately listing the ‘727 patent in the Orange Book, TMC has forced generic manufacturers to assess their products in view of the claims of the ‘727 patent.
- Water Slides. Having just come back from a nice excursion with the family that got me thinking as to the physics and inventiveness behind many of the attractions at the water park, I was pleased to find that someone had beaten me to the punch and already assembled a complete list of water slide patents. It appears to be the work of Victor A. Canfield, a professor of pharmacology at Penn State. Go figure.
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