In a decision that is not very surprising but nonetheless worth
taking note of, the Federal Circuit found that a reasonable jury
could have found claims reciting methods using a recombinant
polypeptide to be anticipated by prior art methods using a
"native" version of the same polypeptide. The decision
came in Biogen MA Inc. v. EMD Serono, Inc., and
includes an interesting discussion of claim construction for method
claims reciting product-by-process limitations.
The Patent At Issue
The patent at issue was Biogen's U.S. Patent 7,588,755,
related to its REBIF® (interferon-β-1a) product for
treating multiple sclerosis. Claim 1 was identified as
representative:
1. A method for immunomodulation or
treating a viral condition[ ], a viral disease, cancers or tumors
comprising the step of administering to a patient in need of such
treatment a therapeutically effective amount of a composition
comprising:
