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✅ Omitted Elements and Written Description: Federal Circuit's Split Decision in Allergan v. Sun Pharma

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by Dennis Crouch I previously wrote about Allergan USA, Inc. v. MSN Laboratories Private Ltd. (Sun Pharma), No. 24-1061 (Fed. Cir. Aug. 13, 2024), focusing on Federal Circuit’s about-face on obviousness-type double patenting. My original post skipped over an important aspect of the opinion: the court’s 2-1 decision favoring the patentee on the written description requirement of 35 U.S.C. § 112(a). This portion of the case focuses once again on when an element is “essential” to the invention and therefore required in the claims. Four key takeaways: We presume that no element is “essential.” Courts should look for indications in the patent documents that the feature is critical, essential, etc.

patentlyo.com     Aug 30, 2024