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So much effort is devoted to patent drafting and its associated prosecution to produce strong, broad claims that bring value to the client, that it’s a bit disconcerting when agreements governing the rights in such Intellectual Property are interpreted in a way as to undercut those rights.  However, one such […]

Thanksgiving is the best family holiday. It is stocked full of tradition: family, laughing, turkey dinner, football, and more turkey; while at the same serving as a catalog for memories that mark the progression of our lives. Fortunately, I was always able to get at least one of the Turkey legs, which you could pick up like fried chicken and dive-in without concern for cutlery rules, dripping juice or falling bits of skin or meat (these were the dog’s responsibility). Imagine the shock when a few months ago I stumbled on U.S. Patent No. 10,327,596 for a turkey leg holder.

In OSI Pharmaceuticals, LLC v. Apotex Inc.[1] the Federal Circuit reversed the Patent Trial and Appeal Board’s inter partes review decision that claims 44-46 and 53 of OSI’s patent U.S. 6,900,221 (‘221 Patent) were unpatentable as obvious.[2]  It is a noteworthy case because it squarely addresses obviousness and reasonable expectation […]

As patent practitioners, so much of what we do is managing deadlines, devising strategy within those deadlines and evaluating the impact of delay.  The importance of this is illustrated in Intra-Cellular Therapies, Inc. v. Andrei Iancu[1] where the Federal Circuit upheld a decision by the District Court for the Eastern District of Virginia on patent term adjustment (PTA).[2]  It serves as a reminder to practitioners that in addition to other tactical considerations involved in replying to a Final Office Action, they must also account for its effect on PTA.

In Henny Penny Corp. v. Frymaster LLC[1] the Federal Circuit upheld the Patent Trial and Appeal Board’s inter partes review decision that claims 1-3, 5-12, 17-21, and 23 of Frymaster’s patent U.S. 8,497,691 (‘691 Patent) were not unpatentable as obvious.[2]  It is an interesting case because it illustrates a finding of nonobviousness where the Board not only held that there was no motivation to combine, but endorsed a showing of secondary considerations.

This is an article in a series reviewing Fluid Catalytic Cracking (FCC) patents granted in approximately the last year.  In particular, the patents highlighted here relate to FCC catalyst and additive systems.  One take-away from this review is that the number of such patents as a percentage of the entirety of FCC-related patents, including those related to equipment, processes, feed treatment, environmental, etc., is down to less than a quarter.  This may reflect a shift in research dollars away from the catalyst area, or at least a shift in those research dollars directed to acquiring patentable inventions.  The second take-away is that the catalyst related patents are largely directed to integral multiple zeolite systems for increasing light olefins production, such as USY and ZSM-5.  This was already a fairly crowded area, however, in U.S. Patent No. 10,173,206 assigned to Albemarle Europe SPL, an interesting approach was to combine a Y zeolite exchanged with a non-rare earth material selected from magnesium, calcium or strontium, with a ZSM-5 zeolite, where the ratio of the two zeolites was specified.

It is typical for primary aspects of a technology to be recognized as a valuable asset; things readily perceived as inventive deviations from the conventional, technical inflection points that set processes or products apart from comparative offerings of competitors.  Organizations readily recognize such inventions as needing patent protection.  However, patentable inventions don’t always spring from multi-million-dollar R&D budgets.  Often, they result from engineers and scientists simply focusing on the best way to solve a problem, perform some function more efficiently, or getting more product out the door.  As such, they don’t necessarily relate to the central portion of a process or technology.  Nor do they always appear as something patentable, if to the untrained eye they merely resemble useful twists on things known.  For example, boilers, steam generation and their corresponding controls have long been used, however, Patent No. 10,125,973 applies a steam generation process to oil production.  Magnetic separation processes are also known; however, Patent Nos. 10,138,410 & 10,150,908 demonstrate applying a form of magnetic separation to purifying injection well water.  Everyone learns about precipitation separation of compounds from aqueous solutions in chemistry lab, however, Patent No. 10,258,920 demonstrates an application to a Kuwait oilfield.

Carbon Dioxide injection has been used effectively for enhanced oil recovery from reservoirs, since at high pressures it forms a miscible mixture with oil, increasing the volume of the oil, and allowing it to dislodge additional material from the rock as it pushes through the formation.[1]  CO2 injection is often used in a process known as water alternated with gas (WAG), where the gas and water are alternately injected into the well, thereby mitigating the tendency of the lower density gas to migrate to the top of the reservoir and bypass other sections.[2]  Interest in CO2 injection continues, not simply in conventional oil reservoirs, but in unconventional reservoirs as well.[3]  Not surprisingly, aspects of CO2 injection find their way into patent claims.

This is an article in a series reviewing Enhanced Oil Recovery (EOR) patents granted in approximately the last year.  In particular, the patents highlighted here relate to fluids injected into the well to improve oil recovery: specifically, co-solvent systems and systems containing multicarboxylates.

The ‘209 Patent includes method claims where folic acid and a methylmalonic acid lowering agent (e.g., vitamin B12) are administered prior to treatment with the antifolate pemetrexed disodium, a chemotherapy agent.[3]  The folic acid and methylmalonic acid are used to ameliorate the toxic effects of the pemetrexed.[4]  The heart of the Board’s conclusion was that although it was known to use folic acid to reduce the toxicity of antifolates such as pemetrexed, there was no reason to pretreat with vitamin B12 and folic acid prior to treatment with pemetrexed for cancer.[5]  On appeal, the Petitioner’s obviousness arguments related to the EP005 reference, which taught use of folic acid in conjunction with vitamin B12 to reduce homocysteine levels for all purposes.[6]  Homocysteine is an amino acid, and when present in high levels is predictive of pemetrexed toxicity.[7]  On its face this appears to be a solid case for obviousness.  Indeed, those arguing against motivation to combine during patent prosecution have almost certainly encountered an Examiner’s response referencing MPEP 2144IV at one time or the other: