Mary Pat Thynge: “Expected” Change in Federal Circuit Precedent Cannot Control JMOL Inquiry

A recent decision by Magistrate Judge Mary Pat Thynge puts to rest the notion that a district court will follow an anticipated change in the law when considering a post-verdict motion for judgment as a matter of law. In its decision, the Court acknowledged that, just last month, the Federal Circuit heard argument on whether Section 112 contains a written-description requirement distinct from the enablement requirement. The resulting “expected intervening change in the law,” however, was insufficient to warrant immediate judicial recognition:

“It is the court’s opinion that an expectation of change does not constitute an intervening change. . . . The court recognizes that the Federal Circuit has heard oral argument in Ariad Pharms., Inc. v. Eli Lilly & Co. and that the Federal Circuit’s forthcoming decision in that case may alter the scope and purpose of the written description requirement. However, this court . . . is constrained to follow existing standards under Federal Circuit law, and Federal Circuit precedent ‘clearly recognizes a separate written description requirement.’ ” (slip op. at 19)

Cordance Corp. v. Inc., C.A. No. 06-491-MPT (D. Del. Feb. 22, 2010) (Thynge, M.J.).

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