Tuesday, February 22, 2011

Biopolymer Engineering v. Immunocorp

Note the Rule 36 disposition of Biopolymer Engineering (dba Biothera) and MIT vs. Immunocorp and Biotech Pharmacon.

Of the Markman results in the Dec. 2007 hearing in Biopolymer Engineering, Inc. v. Immunocorp and Biotec Pharmacon.

Note text:

As to the proposal of Immunocorp and Biotec regarding grinding, the disputed terms do not explicitly contain a grinding limitation. Accordingly, Immunocorp and Biotec rely on the specifications and prosecution histories to support their proposal. In construing claims, a court must not import limitations from a patent's specification. In re Trans Tex. Holdings Corp., 498 F.3d 1290, 1299 (Fed. Cir. 2007); Phillips, 415 F.3d at 1323. In general, methods of manufacture disclosed in a specification do not limit product claims:

It is generally true . . . that product claims are not limited to the methods of manufacture disclosed in the specification and that "[t]he method of manufacture, even when cited as advantageous, does not of itself convert product claims into claims limited to a particular process. . . . A novel product that meets the criteria of patentability is not limited to the process by which it was made." However, process steps can be treated as part of a product claim if the patentee has made clear that the process steps are an essential part of the claimed invention.

Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1375 (Fed. Cir. 2007) (citation omitted). Immunocorp and Biotec contend that grinding is critical to the inventions.


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