In In re Kubin, the Court affirmed a decision of the Board of Appeals of the USPTO that claims to an isolated polynucleotide molecule encoding a polypeptide at least 80% identical with a defined amino acid sequence in a known polypeptide was obvious over that known polypeptide.

In Ariad Pharmaceuticals Inc. v. Eli Lilly and Company the Court reversed a district court decision to hold that a claim to modifying external influences on a cell by inhibition of expression of a gene whose transcription is regulated by NF-κB by reducing NF-κB binding to its recognition sites on the gene complied with the written description requirement of 35 USC 112, the Court of Appeals finding that the description failed to show that there was true possession of the invention at the time of filing the application because no compounds capable of effecting such inhibition were disclosed. The third decision writes a further chapter in the saga of US Patent 5,583,216 (Ochiai, having a priority date of December 19, 1974).

In Takeda Pharmaceutical Corp. v. Doll, the Court of Appeals vacated the decision of the district court and remanded the case for further fact finding on the question of whether claims to a method of making certain acylated cephems constituted double patenting over earlier claims to the acylated cephems themselves.

Last year in Aristocrat Technologies Australia PTY Ltd. v. International Game Technology, the district court for the Northern District of California held that revival of an application where the U.S. national phase entry was one day late was possible only if one met the "unavoidable" standard set by the patent statute. It held that this standard had not been met and concluded that this failure meant that the patent was invalid. On September 22, 2008, the Court of Appeals for Federal Circuit (CAFC) reversed the district court's decision on invalidity on the basis that "improper revival" was not a ground of invalidity under either of the two provisions relied on by the district court to invalidate the patent.

In Litecubes LLC v. Northern Light Products, the Court of Appeals for the Federal Circuit was confronted with a case in which novelty items (illuminable artificial “ice cubes” than can be placed in drinks) were made in China and sold into the United States by a Canadian Corporation (Northern Lights). It was claimed that these items fell within the scope of United States patents and were also the subject of copyright protection. The sales into the United States were made “free on board” Northern Lights Canadian offices so that legal ownership of the novelties was transferred from the Canadian corporation before the goods actually entered the United States.

This bulletin deals with the decision handed down by the Court of Appeals for the Federal Circuit which determined that jurisdiction does attach in this fact situation.