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Eli Lilly & Co. v. Bd. of Regents of the Univ. of Wash.
The CAFC found that the Director's two-way test for determining whether two
parties claim the "same patentable invention" reflects a permissible reading
of 37 C.F.R. 1.601(n), promulgated pursuant to 35 U.S.C. 135(a), where a
species claim to a presumptive senior party allegedly anticipates a genus
claim to a presumptive junior party. Circuit Judge Lourie dissented, arguing
that the Board's action constitutes an abuse of discretion because the
language of Rule 601(n) "plainly describes a one-way test and does not
support a two-way test."
For more patent information, see
http://www.patentcribsheet.com/Cases/elilill2.html.
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This posting contains educational information for lawyers directly
impacting patent preparation and prosecution. It does not constitute legal
advice, nor does it create or constitute any attorney-client relationship.
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