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“Claims Directed To Diagnostic Correlation and Method of Treatment Are Patent Eligible Subject Matter” by Mark J. Cohen, Ph.D.

  • Apr 6 2019

A recent decision from the Federal Circuit, Endo Pharmaceuticals Inc., v. Teva Pharmaceuticals USA, Inc., Appeal Nos 2017-1240, 2017-1455, 2017-1887 (Fed. Cir. March 28, 2019) held that claiming a new treatment for an ailment using a natural law can be patent eligible under 35 U.S.C. §101.  Section 101 of the Patent Act states that “[w]hoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof may obtain a patent therefor, subject to the conditions and requirements of this title.”  However, §101 contains implicit exceptions: laws of nature, natural phenomena and abstract ideas. The panel of judges of Wallach, Clevenger and Stoll held unanimously that the claims at issue were not directed to a natural law and were patent eligible under §101.

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