Insights: Publications Protecting Antibody Innovations: Searching for Equivalents under The Doctrine of Equivalents —A Discussion of Teva v. Eli Lilly and beyond
Kilpatrick Townsend MEMO|Biopharma Industry Blog
United States courts have recently tightened the written description requirements for antibody claims. The scope of issued claims is now often limited to antibodies with specific sequences of the CDR and the heavy chain and light chain variable domains. Patentees are concerned that competitors can easily design around patent claims by making minimum changes to the specifically claimed structural elements. Since such a design-around will not be liable for literal infringement of the claims, the question is whether a patentee can be found liable for infringement under the Doctrine of Equivalents (“DOE”). DOE applies when the accused product or process contains elements identical or equivalent to each claimed element of the patented invention. Although the U.S. Supreme Court established the tests of DOE more than five decades ago —the function-way-results (“FWR”) test and the insubstantial differences test, case law addressing DOE issues related to biologics, especially antibodies, are scarce. This article discusses antibody case law, where in each case, the patentee failed to convince the court to find that the accused infringed the patentee’s claims under DOE.
Related People
Related Industries
Disclaimer
While we are pleased to have you contact us by telephone, surface mail, electronic mail, or by facsimile transmission, contacting Kilpatrick Townsend & Stockton LLP or any of its attorneys does not create an attorney-client relationship. The formation of an attorney-client relationship requires consideration of multiple factors, including possible conflicts of interest. An attorney-client relationship is formed only when both you and the Firm have agreed to proceed with a defined engagement.
DO NOT CONVEY TO US ANY INFORMATION YOU REGARD AS CONFIDENTIAL UNTIL A FORMAL CLIENT-ATTORNEY RELATIONSHIP HAS BEEN ESTABLISHED.
If you do convey information, you recognize that we may review and disclose the information, and you agree that even if you regard the information as highly confidential and even if it is transmitted in a good faith effort to retain us, such a review does not preclude us from representing another client directly adverse to you, even in a matter where that information could be used against you.
