Federal Circuit to consider whether a separate written description requirement exists in section 112August 23, 2009

In an en banc order Friday, the Federal Circuit announced it will rehear Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co. en banc to consider whether there is a written description requirement in § 112 separate and apart from the enablement requirement. Specifically, the questions presented are:

  1. Whether 35 U.S.C. § 112, paragraph 1, contains a written description requirement separate from an enablement requirement?
  2. If a separate written description requirement is set forth in the statute, what is the scope and purpose of the requirement?

Our post regarding the panel decision in the case may be found here. Judge Linn filed an opinion concurring in the panel's decision in order to restate his opinion that no such separate written description requirement exists in the statute. He now has his opportunity to convince his colleagues that there is no such requirement.

To read the order in Ariad Pharms., Inc. v. Eli Lilly & Co., click here.

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