United States Federal Circuit

In a declaratory judgment action regarding a patent involving the use of a chemical compound to treat ALS, a decision finding that plaintiff failed to prove that the patent was unenforceable due to inequitable conduct and that certain claims were invalid as anticipated is vacated in part as to the anticipation issue where the court erred in determining that one of the alleged two items of invalidating prior art did not enable a method of using the compound to treat ALS and, therefore, could not serve as an anticipatory reference under 35 U.S.C. section 102(b).

Appellate Information

• Decided 11/20/2006
• Published 11/20/2006

Judges

• Before RADER, SCHALL, and PROST, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• C. Kyle Musgrove, Kenyon & Kenyon, of Washington, DC, argued for plaintiff-appellant.   With him on the brief were Philip J. McCabe, of San Jose, CA;  Michael M. Shen, of Washington, DC;  and Steven J. Lee, of New York, NY.


• For Appellees:
  
• Paul H. Berghoff, McDonnell, Boehnen, Hulbert, & Berghoff LLP, of Chicago, Illinois, argued for defendant-appellee.   With him on the brief were Curt J. Whitenack, James C. Gumina, Jeremy E. Noe, and Paul S. Tully.   Of counsel on the brief was Joseph Kirk, Jr., Aventis Pharmaceuticals Inc., of Bridgewater, NJ.