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Federal Circuit Reinvigorates “Original Patent” Requirement of 35 U.S.C. § 251 For Reissue Patents

On November 17, 2014, the Court of Appeals for the Federal Circuit, in Antares Pharma, Inc. v. medac Pharma Inc. and medac GmbH, ruled in favor of Ropes & Gray client Medac and breathed new life into the “original patent” requirement of 35 U.S.C. § 251 for reissue claims. Citing to Supreme Court cases dating back more than 150 years, the Federal Circuit clarified the standard for meeting the original patent requirement, finding that hints, suggestions and indications in the original patent’s specification are insufficient. Rather, the original patent’s “specification must clearly and unequivocally disclose the newly claimed invention as a separate invention.” The decision is likely to have a significant impact on the prosecution and litigation of reissue claims. Continue

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