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Following all of the latest IP developments in life sciences.

 

Jason Balich

Jason Balich
Jason Balich counsels the firm’s clients and represents them in patent, trade secret and commercial litigation matters before district courts around the country, the International Trade Commission, and the Patent Trial and Appeal Board (PTAB) in post-grant matters such as inter partes reviews. Jason’s counseling and litigation experience spans a diverse set of subject matters including pharmaceuticals, biotechnology, biosimilars, medical devices, data storage media, electro-hydraulic devices and consumer electronics.

Recent Posts

Issue Preclusion Means One Strike and You Are Out

While issue preclusion means one strike and you are out, a court might need to call a few balls before calling the strike that ends the case.

In Horizon Medicines LLC, et al. v. Dr. Reddy’s Laboratories, Inc. et al., No. 15-cv-3324, D.I. 468, 17 (D.NJ Feb. 24, 2022), Judge Stanley Chesler of the District of New Jersey held that two Orange Book (OB)-listed patents covering Vimovo® (esomeprazole magnesium; naproxen) were invalid for lack of written description. The holding was based on issue preclusion from an earlier Federal Circuit decision addressing to two related OB-listed patents having different claims. But it took defendant Dr. Reddy’s Laboratories (“DRL”) two unsuccessful summary judgment motions before getting it right on the third try.

The lessons from this saga are threefold: (1) persistence pays off, (2) factual analyses win the day, and (3) differences in claim language should be made meaningful, not illusory.

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Raising An Argument For The First Time On Appeal Is Fraught With Danger

There is always a danger in raising an argument for the first time on appeal. The Federal Circuit’s recent decision in Boston Scientific Neuromodulation v. Nevro (No. 2019-1584) provides yet another example of this particular peril. 

The case began with Nevro filing an IPR petition challenging the validity of a Boston Scientific patent that claimed an implantable medical device that stopped “listening for” one type of “telemetry” (i.e. a wireless signal to program the device) when the battery level dropped too low, but continued “listening for” a second type of “telemetry” from the medical device’s wireless charging unit. 

In a preliminary response, Boston Scientific proposed a construction of “telemetry” to mean the “transmission of data or information,” which Boston Scientific contended the prior art did not disclose the second type of telemetry—the signal from the external wireless battery charger.

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