Federal Circuit Reverses Noninfringement Declaratory Judgment, Dissent Takes on Gene Patentability
By Chinh Vo – Edited by Anthony Kammer
Intervet Inc. v. Merial Ltd., No. 2009-1568 (Fed. Cir. Aug. 4, 2010)
On August 4, 2010, the United States Court of Appeals for the Federal Circuit reversed and remanded the declaratory judgment of the United States District Court of the District of Columbia, which held that Intervet’s Porcine Circovirus vaccine (“PCV-2”) did not infringe Merial’s gene patent. The majority reversed the lower court’s ruling on grounds of claim construction and for improper application of the doctrine of equivalents.
Plaintiff Intervet Inc. (“Intervet”) filed a complaint against Merial Limited (“Merial”) in 2006, asking for a declaratory judgment stating that its PCV2 vaccine did not infringe on Merial’s gene patent. The DC District Court granted this declaratory ruling in Intervet’s favor, finding that Merial’s patent covered only the specific DNA sequences disclosed. On appeal, the Federal Circuit rejected the district court’s construction of Merial’s patent claim as overly limiting, finding that Merial had a proper claim directed at the entire genus of PCV2 sequences. The Federal Circuit also held that a narrowing amendment to the claim did not estop Merial from asserting that one or more elements of Intervet’s product were equivalent to the elements in the claim. Dissenting in part, Circuit Judge Dyk argued that mere isolation of a DNA molecule is not sufficient for patentability.