HOW INCREASING FEDERAL CIRCUIT PATENT SCRUTINY UNDER 35 USC 112 IMPACTS APPLICANTS AND OWNERS

A recent decision by the Court of Appeals for the Federal Circuit provides new evidence of an increasing scrutiny of the claims and specifications for patents and pending applications under 35 USC 112, particularly with respect to enablement. This Federal Circuit trend, occurring simultaneously with a similar increase in focus on enablement by the U.S. Patent and Trademark Office, potentially impacts the survivability of many patent claims in current and future litigation. What is clear is that patent applicants must ensure their claims can withstand increased 35 USC 112 scrutiny, and patent owners must calibrate enforcement of existing portfolios appropriately. Going forward, applicants of U.S. patents would be wise to ensure claims meet these enablement requirements at the drafting stage to avoid costly enforcement headaches down the road.

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