Thursday, October 06, 2005

District court reversed in Invitrogen v. Biocrest

The CAFC noted that the district court relied on an incorrect understanding of public use under 35 USC 102(b). The patent in question was Invitrogen's US 4,981,797. Stratagene was a defendant in the case.

The CAFC cited EZ Dock 276 F.3d 1347 concerning the experimental use negation of Pfaff's "ready for patenting." The CAFC noted that Pfaff had eliminated the previous totality of circumstances test (note that Pfaff is about the on-sale bar, not public use).

The CAFC noted the proper test for public use was whether the use was accessible to the public or was commercially exploited. The CAFC cited Allied Colloids, 64 F3d 1370.

The CAFC referred to the ready for patenting component of Pfaff as "another necessary requirement of a public use bar."

Yes, the CAFC cited Egbert v Lippmann, 104 US 333. The CAFC even cited SmithKline v. Apotex, 403 F.3d 1331, although not about experimental use.

Invalidity of Invitrogen's patent on the grounds of public use was reversed. On paper, one might think that the district court ignored a recent Supreme Court precedent (Pfaff). The situation is not that clear, as the CAFC is importing requirements for "on-sale" into "public use." One thinks back to old Learned Hand cases which struggled with both, and the fact that the Supreme court in Pfaff (on sale) relied on a Learned Hand case on public use.


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