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Written between the lines

The recent refusal by the U.S. Court of Appeals for the Federal Circuit to rehear a case pertaining to the written description element of U.S. patents leaves patent prosecutors without clear guidance as to how to fulfill the requirement, particularly for biotech patents. Attorneys say the lack of certainty affects the quality of biotech patents. In addition, the court may have created a double standard for biotech that some argue will stifle the incentive to do very early-stage discovery.

The original CAFC decision, made by a panel of three judges, had affirmed a lower court's finding that a University of Rochester patent was invalid for lack of written description. Although the full court refused to rehear the case "en banc,"

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