Background
The patent statute recognizes that an invention may be jointly invented, however, there is no definition of inventorship in the patent statute. For this reason, the courts have been left to determine what constitutes sufficient contribution to an invention to qualify one for inventorship. 35 U.S.C. § 116 (2018) states:
Inventors may apply for a patent jointly even though (1) they did not physically work together or at the same time, (2) each did not make the same type of amount or contribution, or (3) each did not make a contribution to the subject matter of every claim of the patent.
Thus, the statute sets out elements not required for joint inventorship but fails to “set forth the minimum quality or quantity of contribution required for joint inventorship.”
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Senior Party The Broad Institute, Harvard University, and the Massachusetts Institute of Technology (collectively, Broad ) filed its motion in opposition to Junior Party The University of California/Berkeley, the University of Vienna, and Emmanuelle Charpentier (collectively, CVC ) motion for priority in Interference No. 106,115. Although Broad argued in its own priority motion that the invention as defined by the Count was one that could only be conceived once it was reduced to practice (a standard originally applied to since-invalidated claims to isolated DNA) and, not coincidentally that Broad s earliest actual reduction to practice (ARTP) antedated CVC s ARTP, in its opposition to CVC s priority motion, Broad takes a more conservative albeit more strongly supported tack.
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Last week, the Federal Circuit affirmed a jury verdict against Baxalta Inc., Baxalta US Inc., and Nektar Therapeutics for infringing Bayer Healthcare s patent to human blood clotting factor conjugates in
Bayer Healthcare LLC v. Baxalta Inc.
Bayer Healthcare sued Defendants on U.S. Patent No. 9,364,520, alleging willful infringement by Baxalta s product, Adynovate®. This product is a recombinant human Factor VIII (the blood clotting factor responsible for causing Hemophilia A) having the protein structural domains A1-A2-B-A3-C1-C2, wherein the B portion was specifically modified by addition of polyethylene glycol (PEG). PEGylation is important because Factor VIII has an 11-hour half-life which requires frequent injections and leads to reduced patient compliance. The prior art had disclosed random modification of Factor VIII with PEG, which had several drawbacks due to the multiplicity of PEGylations sites ( 15