Post-AbbVie: Written Description And Functional Claiming

Law360, New York (August 27, 2014, 7:37 AM EDT) -- The validity of claims to classes of biologic and chemical compounds defined by their function, instead of structure, has been tested for decades under the written description requirement of Section 112 of the Patent Act.[1] This statutory requirement mandates that the patent specification have sufficient disclosure to “convey with reasonable clarity to those skilled in the art” that the applicant in fact “was in possession” of the claimed invention. The breadth of the claims determines the extent of the required disclosure and in a series of decisions in the biopharma context — most authored by Judge Alan Lourie — the Federal...

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