Challenging Therapeutics IP After Fed. Circ. Drink Can Ruling

By Vanessa Yen and Evan Diamond (February 3, 2021, 5:29 PM EST) -- The U.S. Court of Appeals for the Federal Circuit's Dec. 31 opinion in Ball Metal Beverage Container Corp. v. Crown Packaging Technology Inc.,[1] though nonprecedential, raises important considerations for pharmaceutical and biologics patents, a context in which patent challengers regularly allege the indefiniteness of measurement claim terms that describe pharmacologic or physicochemical properties of the invention.

Under Ball Metal, even if a measurement term is found to allow for multiple different measurement methods that can produce different results, indefiniteness may still be avoided if the challenger cannot show that such differences "matter for determining whether or not [the] claim limitation is...

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