Believe All Women or Support Joe Biden?

SHERRY F. COLB

Cornell Law professor Sherry F. Colb comments on recent sexual assault allegations against presumptive Democratic nominee Joe Biden. Colb argues that if the only choices for President are Donald Trump and Joe Biden, the sexual assault allegation against the latter will take second fiddle to the need to defeat the former and defends this perspective as not manifesting hypocrisy or indifference to sexual assault or other intimate violence.

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Biogen International GmbH v. Banner Life Sciences, LLC

Docket: 20-1373

Opinion Date: April 21, 2020

Judge: Alan David Lourie

Areas of Law: Drugs & Biotech, Intellectual Property, Patents

Biogen holds the New Drug Application for the active ingredient dimethyl fumarate (DMF), which was FDA-approved in 2013 as Tecfidera®, a twice-daily pill for the treatment of relapsing forms of multiple sclerosis at a daily dose of 480 mg. The 001 patent, “Utilization of Dialkylfumarates,” discloses that dialkyl fumarates may have therapeutic uses “in transplantation medicine and for the therapy of autoimmune diseases,” including multiple sclerosis. After the five-year data exclusivity for Tecfidera® expired, Banner submitted an application under 21 U.S.C. 355(b)(2) to market a twice-daily monomethyl fumarate (MMF) pill at a daily dose of 380 mg. Biogen alleged infringement of the 001 patent. Banner argued that section 156(b)(2) limits the scope of the patent’s extension to methods of using the approved product as defined in 156(f)—DMF, its salts, or its esters—and that MMF is none of those things. Biogen responded that section 156(b)(2) limits extension only to uses of any product within the original scope of the claims. The patent will expire in June 2020. The Federal Circuit affirmed the district court’s finding of non-infringement. The monomethyl ester, covered by claim 1, is not covered by the extension. The scope of a patent term extension under 35 U.S.C. 156 only includes the active ingredient of an approved product, or an ester or salt of that active ingredient; the product at issue does not fall within those categories.

Dragon Intellectual Property LLC v. DISH Network LLC

Docket: 19-1283

Opinion Date: April 21, 2020

Judge: Kimberly Ann Moore

Areas of Law: Intellectual Property, Legal Ethics, Patents

Dragon sued 10 defendants, alleging patent infringement. Based on petitions by DISH and SXM (collectively, “DISH”), the Board instituted inter partes review (IPR) of the patent. The district court stayed proceedings as to DISH but proceeded as to the other defendants. After the court issued a claim construction order, Dragon, DISH, and the other defendants stipulated to noninfringement as to the accused products. The court entered judgment in favor of all defendants. In the parallel IPR, the Board issued a final decision holding unpatentable all asserted claims. DISH sought attorneys’ fees under 35 U.S.C. 285 and 28 U.S.C. 1927. Before the motions were resolved, Dragon appealed both the judgment of noninfringement and the Board’s decision. The Federal Circuit affirmed the Board’s decision and dismissed the district court appeal as moot. On remand, the district court vacated the judgment of noninfringement as moot but denied DISH’s motions for attorneys’ fees, holding that “success in a different forum is not a basis for attorneys’ fees” in the district court. The Federal Circuit vacated. The judgment of noninfringement was vacated only because DISH successfully invalidated the claims in parallel IPR proceedings, rendering moot Dragon’s infringement action. DISH’s success in obtaining a judgment of noninfringement, although later vacated because of its success in IPR, supports holding that they are prevailing parties.