Yes skull I think when the appeals court affirmed the lower court's decision, that the upheld the denial. The u s patent office could change the patent and accept the added information if they were to re exam the patent.
Ok sorry guys but this news - is it good or bad for ATRS ? just wanted to get more info - Cheers
or am I reading this wrong...Federal Circuit agreed with District court ??
district court denied the request after concluding that the new claims did not satisfy the original patent requirement of the reissue statute. Antares appealed, and the (Federal Circuit affirmed.)
The Federal Circuit is particularly known for its decisions on patent law, as it is the only appellate-level court with the jurisdiction to hear patent case appeals
Sentiment: Strong Buy
skull you may be correct that it helps their case when it goes to trial, but as far as the injunction appeal getting an en banc reveiw, that doesn't look to me as a very chance of happening. Once the court of appeals has ruled, they usually, like 99% of the time, won't accept an en banc. Don't know if you know, but en banc is where all the presiding judges in that circuit vote on whether they should hear the appeal, and then they all have to give their decisions. Sometimes their decisions can take as long as a year from some judges. If the court turns down an en banc review, the only other course of action is the supreme court, which is real expensive. If the patent office will do a re exam of their patent, this will really help their case imo.
Sentiment: Strong Buy
the reasons other cases fail are because you can NOT add NEW elements to the original patent...basically what Antares did was not include a (full description) of its original patent
that is not true..theres been other cases somewhat similar to Antares
where certain elements were not disclose in its original patent
I don't have the cases on top of my head but there is
law states you have 2 years to fix it..
the problem here was that Antares didn't disclose existing elements that were part of the original patent
the case will now continue I strongly believe Antares will win..
I think the share price is reflecting this news which was out early Dec then you have also pipeline coming around the corner and analyst buy ratings
Not to rain on your parade skull, but around 1% of appeals for an en banc review ever get approved. They are better off spending their money elsewhere. Even if they are correct in their assumption, they have already had their one bite at the apple. Hope you are right and I am wrong though..
Sentiment: Strong Buy
gosh if only I had the patience and legal awareness to read through and understand your post. Could you summarize in simple terms "good or bad" for ATRS? thanks.
Sentiment: Strong Buy
The Federal Circuit contrasted this result with that of another case, In re Amos, 953 F.2d 613 (Fed. Cir. 1991). In the Amos case, the patentee broadened his claims that were directed towards an invention for holding down work pieces on a moving table using rollers. In the specification, the patentee described how the rollers could be raised via mechanical or electronic means, but only claimed the mechanical version. During reissue, the patentee added claims directed towards the electronic version, which the Court found acceptable because the specification explicitly discussed that embodiment.
The reissue statute is a powerful tool to add new claim scope to issued patents. Care must be taken, however, to file the reissue application within the two-year period and to make sure that the new claims do not add scope that is not well-supported by the specification. This decision is another reason that patent drafters need to be careful when drafting the specification. The patent statute provides some opportunities for fixing claims, but it is difficult to fix a specification if it is lacking and the consequence can be losing claim scope that could have been otherwise available with better drafting.
The original patent requirement requires that the specification adequately support and fully describe the new claims. It is not sufficient if the new, broader claims are “merely suggested or indicated in the original specification.” So, hints, suggestions, or mere indications are not enough. As with many things relating to the understanding of the scope of a patent, “the essential inquiry under the ‘original patent’ clause of § 251 . . . is whether one skilled in the art, reading the specification, would identify the subject matter of the new claims as invented and disclosed by the patentees.”
The Patent at Issue
Antares’ patent specification only described the safety features being on jet injection devices and repeatedly stated that the invention related to jet injectors. It did not generically describe how to use the safety devices with other types of injectors. Based on the limited nature of the specification, the Federal Circuit agreed that the new claims were invalid because they were directed to safety features on generic injectors that were not explicitly and unequivocally disclosed in the specification.
Antares filed suit against Medac, alleging that, among other things, it infringed some of the new claims that emerged from the reissue proceeding. Antares sought a preliminary injunction, but the district court denied the request after concluding that the new claims did not satisfy the original patent requirement of the reissue statute. Antares appealed, and the Federal Circuit affirmed.
Reissue Statute Requirements
Under § 251, a patentee that wants to add new claims that broaden the scope of the claims of an already issued patent must satisfy a number of requirements: (1) the reissue application must be filed within two years of the issuance of the patent; (2) the new claims must not violate the recapture rule (i.e., claiming scope that was surrendered during prosecution); (3) the new claims must not violate the original patent requirement; and (4) no new matter may be added to the specification. At issue in this case was the third requirement—the original patent requirement
If an inventor discovers that he or she has failed to claim all that he or she could have in an issued patent, the patent statute provides a mechanism for going back and adding additional claims during a reissue proceeding. Certain requirements must be met before the patent office will allow such a correction. As the patent holder found out in a recent decision by the Federal Circuit in Antares Pharma, Inc. v. Medac Pharma Inc. (No. 2014-1648), failure to comply with these provisions can render the new claims invalid and unenforceable.
The inventor in Antares developed an automatic injection device to self-administer pharmaceuticals that involved using a needle to puncture the skin of a patient before administering a dose of medication. All of the claims in the original patent involved a “jet injection” limitation. Almost two years after the patent issued, Antares realized that it had failed to include claims directed to safety features on the injector. Because two years had not passed yet, Antares initiated a reissue proceeding with the USPTO under 35 U.S.C. § 251, which allows a patent holder to broaden or narrow claims if initiated within two years of the patent being issued. Antares then added a number of claims to cover safety features on general injection devices, and not just jet injection devices (see No. RE 44,846).