Post Ariad: Written Descriptions For Patents
January 10, 2011
By: Lawrence M. Green and Janice A. Vatland
Law360
In Ariad Pharmaceuticals Inc. v. Eli Lilly and Company (Ariad), the Court of Appeals for the Federal Circuit confirmed the existence of a written description requirement separate from the enablement requirement. Ariad Pharmaceuticals Inc. v. Eli Lilly and Company, 598 F.3d 1336 (Fed. Cir. 2010).
In this decision, the Federal Circuit held that the specification of a patent shall contain a written description of the invention and the manner and process of making and using it. While the Ariad decision did not mark a change in the case law (indeed, the separate written description requirement has been the law since at least 1997), Ariad highlights the need for patent practitioners to keep the written description requirement in mind while drafting patent applications. The decision also reinforces the notion that this is a defense to be used by litigators when attacking the validity of a patent, particularly patents in the unpredictable arts.
