Nobel Biocare Services AG v. Instradent USA, Inc.

Nobel Biocare Services AG (“Nobel”) appeals from the decision of the U.S. Patent and Trademark Office (“PTO”) Patent Trial and Appeal Board (“the Board”) in an inter partes review (“IPR”) holding claims 1–5 and 19 of U.S. Patent 8,714,977 (“the ’977 patent”) unpatentable. See Instradent USA, Inc. v. Nobel Biocare Servs. AG, No. IPR2015-01786, 2017 Pat. App. LEXIS 8329 (P.T.A.B. Feb. 15, 2017) (“Board Decision”); Instradent USA, Inc. v. Nobel Biocare Servs. AG, No. IPR2015-01786, 2017 WL 1969639 (P.T.A.B. May 10, 2017) (“Rehearing Decision”). Because the Board did not err in its anticipation finding, we affirm.

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ParkerVision, Inc. v. Qualcomm Inc.

ParkerVision, Inc. (“ParkerVision”) appeals from three final written decisions of the U.S. Patent Trial and Appeal Board (“Board”) in related inter partes review proceedings, in which the Board held certain claims of U.S. Patent No. 6,091,940 (“the ’940 patent”) unpatentable as obvious under 35 U.S.C. § 103(a).1 Qualcomm Inc. and Qualcomm Atheros, Inc. (together, “Qualcomm”) cross-appeal from the Board’s determination that Qualcomm failed to prove by a preponderance of the evidence that certain other claims of the ’940 patent are unpatentable. We affirm.

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Spinelli v. National Football League

Plaintiffs-Appellants are sports photographers who make a living taking and licensing photographs of National Football League events. They seek to recover damages on copyright, contract, and tort theories of liability after Defendants-Appellees allegedly exploited thousands of Plaintiffs’ photographs without a license and without compensating Plaintiffs in any way. Plaintiffs also bring an antitrust challenge, alleging that the NFL and Associated Press conspired to restrain trade in the market for commercial licenses of NFL event photographs. The United States District Court for the Southern District of New York (Robert W. Sweet, J.) dismissed all of the claims at issue here for failure to state a claim. We AFFIRM IN PART, VACATE IN PART, and REMAND for further proceeding.

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Orexo AB v. Actavis Elizabeth, LLC

Orexo AB and Orexo US Inc. (collectively “Orexo”) appeal the decision of the United States District Court for the District of Delaware, holding claims 1, 3–6, and 8–10 of U.S. Patent No. 8,940,330 (“the ’330 Patent”) invalid on the ground of obviousness. The ’330 Patent, entitled “Abuse-Resistant Pharmaceutical Composition for the Treatment of Opioid Dependence,” claims a product having the brand name Zubsolv®, approved by the FDA for treatment of opioid dependence.

Actavis Elizabeth LLC (“Actavis”) filed an Abbreviated New Drug Application (“ANDA”) for a generic counterpart of Zubsolv, accompanied by a Paragraph IV certification, leading to this Hatch-Waxman litigation in accordance with 21 U.S.C. § 355(j) and 35 U.S.C. § 271(e)(2)(A). Two Orexo patents were challenged by Actavis, but U.S. Patent No. 8,454,996 (“the ’996 Patent”), entitled “Pharmaceutical Composition for the Treatment of Acute Disorders,” which was held valid in the district court, is not involved in this appeal.

We reverse the judgment of invalidity of the ’330 Patent, for we conclude that obviousness was not proved by clear and convincing evidence.

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Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc.

Before us are patents that claim the administration of a medication containing the active ingredient 4- aminopyridine (4-AP) to improve walking in individuals with multiple sclerosis. Acorda Therapeutics, Inc., holds New Drug Application No. 022250, approved by the U.S. Food and Drug Administration (FDA). Pursuant to that approval, Acorda markets, under the name “Ampyra®,” 10 milligram 4-AP sustained-release tablets for twice daily oral administration. In the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, or Orange Book, Acorda has listed, as claiming methods of using Ampyra, four patents that Acorda owns: U.S. Patent No. 8,007,826; No. 8,663,685; No. 8,354,437; and No. 8,440,703. Those patents (“the Acorda patents”) are the main patents at issue on appeal.

One additional patent is before us. Acorda holds an exclusive license to an earlier, broader patent, U.S. Patent No. 5,540,938, referred to as “the Elan patent” because it was originally assigned to Elan Corporation, plc (whose successor in interest is Alkermes Pharma Ireland Ltd.). The Elan patent, listed in the Orange Book for Ampyra along with the Acorda patents, claims methods of treating patients having certain conditions, including multiple sclerosis, by administering a drug containing a sustained release formulation of any of certain agents, one of them 4-AP. The later Acorda patents claim species of the Elan patent’s genus claims by adding further, more specific requirements to the Elan patent’s claimed methods. While the Elan patent’s claims broadly cover administering a sustained-release formulation of 4-AP to individuals with multiple sclerosis, the Acorda patents’ claims further specify that such a drug must be administered (1) in a 10 mg dose twice a day (2) at that stable dose for the entire treatment period of at least two weeks (3) to achieve 4-AP serum levels of 15–35 ng/ml and (4) to improve walking.

Roxane Laboratories, Inc.; Mylan Pharmaceuticals, Inc.; and Teva Pharmaceuticals USA, Inc., have submitted Abbreviated New Drug Applications seeking FDA approval to market generic versions of Ampyra. In July 2014, Acorda and Alkermes sued those entities (“defendants”) in the District of Delaware, alleging infringement of several claims in each of the Elan and Acorda patents. The defendants stipulated to infringement but challenged the validity of the asserted claims. The district court held that the asserted claims in the Acorda patents are invalid for obviousness. But the court upheld the asserted claims of the Elan patent against invalidity challenges and enjoined the defendants from activity infringing that patent until it expired on July 30, 2018.

Acorda appealed the invalidity ruling regarding the Acorda patents. The defendants cross-appealed the validity ruling regarding the Elan patent and the resulting injunction. We now affirm the judgment that the asserted Acorda patent claims are invalid. We dismiss the cross-appeal as moot.

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