, the Federal Circuit found communications between Merck and a potential joint venture partner amounted to a commercial offer to sell that invalidated the Orange Book-listed folate patent at issue. The claim relates to the folate component (“MTHF”) of the combination birth control products sold by Bayer under the trademarks Safyral® and Beyaz®.
Despite the confidentiality agreement that was in place, a footnote in the court’s opinion indicates that it was an offer for sale to the public. (There are four other Orange-book listed patents for these products.) The ‘168 patent has a priority date of April 17, 2000, making April 17, 1999 its “critical date” under the pre-AIA version of 35 USC § 102(b).
That fact may not matter in the pre-AIA context applicable here, but could be significant for patents governed by the AIA. According to the Federal Circuit decision, it was as early as 1997 when Merck began “exploring a strategic partnership [with Weider Nutrition International, Inc.] to introduce dietary supplements with Merck ingredients into the United States.” The Federal Circuit decision highlights the following communications between the parties: Notwithstanding these communications, the order never was completed. Watson stipulated to infringement of claim 4, but challenged its validity on a number of grounds, including the on-sale bar of the pre-AIA version of 35 USC § 102(b).
In view of changes that became effective on April 1, 2017 and instituted by the State Intellectual Property Office, the second half of this article offers a brief overview of how these changes impact the PID proceedings in China and further analyzes how best these changes may be utilized by or against entities with patent portfolios in...
API-, Schedule-, or Query Comments-based Invalidation method of cache invalidation is used less often, but provides for significantly more customizability and complex caching use cases than the other two methods.
Rather “[o]n January 9, 1999, Weider sent Merck an email noting that the parties had made a ‘mutual decision’ to cancel Weider’s “existing order for [MTHF].'” Watson filed Abbreviated New Drug Applications (ANDAs) seeking FDA approval to market generic versions of Safyral® and Beyaz®, in response to which Merck and Bayer brought ANDA litigation in the U. The District Court rejected Watson’s invalidity arguments, and found that the there had not been a commercial offer for sale because (i) the September 9, 1998 fax “was not sufficiently definite to qualify as a commercial offer because it did not include ‘important safety and liability terms,'” and there was no “definitive agreement” that had been “signed by both parties” as required by the Confidentiality Agreement. The Federal Circuit decision was authored by Judge Mayer and joined by Judges Dyk and Hughes.
Judge Mayer commenced the analysis noting that “[i]nvalidity under the on-sale bar is a question of law based on underlying questions of fact,” and specifically “is a matter of Federal Circuit law, to be analyzed under the law of contracts as generally understood.” Judge Mayer summarized the principles behind the on-sale bar as follows: Our patent laws deny a patent to an inventor who applies for a patent more than one year after making an attempt to profit from his invention by putting it on sale. Section 102(b)’s on-sale bar is triggered when a claimed invention is: (1) ready for patenting; and (2) the subject of a commercial offer for sale prior to the critical date.
There are three specific methods to invalidate a cache, but not all caching proxies support these methods. When the client requests the data again, it is fetched from the application and stored in the caching proxy.