On February 22, 2007, the United States Patent and Trademark Office formally announced that it is terminating its previously published rule, permitting examination of up to ten nucleotide sequences in biotechnology applications. In November 1996, the USPTO had announced that it would examine a reasonable number, normally up to ten, independent and distinct molecules described by their nucleotide sequence in a single patent application. However in about 2002, the USPTO began limiting examination of most biotechnology applications to a single nucleotide or peptide sequence. The February announcement by the USPTO now makes permanent the USPTO's existing practice with respect to restriction and examination of nucleotide biotechnology applications. The USPTO announcement states that it is effective immediately and applies to all pending patent applications, except for most applications that have already received an action on their merits. The USPTO announcement does not explicitly mention its policy on the examination of peptide sequences. However we assume that the current policy of limiting examination to a single peptide sequence will continue.
The CAFC has affirmed a decision of the U.S. District Court for the District of Oregon, invalidating four U.S. patents owned by Cargill Inc. on the basis of inequitable conduct and violation of the on sale bar. (Cargill Inc. v. Canbra Foods Ltd., Fed. Cir., No. 2006-1265, 2/14/07).
Cargill owned U.S. Patent Nos. 5,969,169, 6,201,145, 6,270,828 and 6,680,396 relating to canola oils. Cargill sued Canbra Foods for infringement. The district court granted Canbra Food's motion for summary judgment that the '828 and '396 patents were invalid, on the basis that the claimed invention was reduced to practice and placed on sale more than a year before the application filing dates. The CAFC affirmed the district court's ruling, finding no clear error in the court's reasoning.
After a trial, the district court also ruled that the '169 and '145 patents were unenforceable due to inequitable conduct. The district court held that the patentee's failure to disclose internal test data comparing the oxidative stability of various canola oils was a material omission made with an intent to deceive the Patent and Trademark Office. The CAFC agreed, finding that internal test data was highly material to the patent examination, which coupled with evidence that the applicant should have known of the materiality, created a strong inference of an intent to deceive.
