Patent Eligibility: Overcoming Early Litigation Challenges

Summary

This practice note considers strategies that you as the patentee may utilize when facing patent eligibility challenges early in litigation. Although much of the content is generalizable, special attention is given to inventions in the life sciences. In recent years, challenges under 35 U.S.C. § 101 in the life sciences arena have focused on claims directed to methods or tools that involve measurement of biological species (diagnostic methods and tools),, compositions of matter based on naturally occurring materials, or methods of treatment using compositions that are asserted to be naturally occurring.