![]() ![]() We will always be dear friends for all eternity. We will be looking a lot better, a lot younger, compared to how our mortal bodies have aged over the last 33 years. We will all be in our prime of life at that time in the future with immortal bodies. Mike, we will see you again on Resurrection Morning. He was always ready to help me if I needed help. He was, and still is, one of my most dearest, most trusted friends I have every had. Jeannie would hold his hand the entire time and kept telling him we love him. ![]() He loved taking pictures and took some remarkable pictures of me in the woods of Larch Mountain that I still have hanging on my wall in the break room of our medical clinic.ĭuring his last days in the hospital we visited with him weekly. In his last year of life he could not get out much so he called our office and spoke for hours every week over the phone, taking turns talking to either me or Jeannie. He visited us on a regular basis for many years. We hit it off right away because we had a lot in common. We met while practice shooting in the woods of Larch Mountain Oregon. While not precedential, this decision would suggest that a “contingent” finding of invalidity based on lack of written description or utility (as distinguished from an “alternative” finding of such invalidity) is not binding regarding related patents having the same written description.Michael and I go back about 33 years. This decision is significant because it emphasizes that a contingent finding of invalidity, as distinguished from an alternative finding of invalidity, can have no preclusive effect, and therefore appeal of a contingent finding to the Federal Circuit must be dismissed for lack of standing. The Federal Circuit went on to hold that because the contingent findings of invalidity challenged by Sebela on appeal cannot have preclusive effect, Sebela did not have constitutional standing to appeal those findings and the appeal must be dismissed for lack of constitutional standing. The Federal Circuit also noted Supreme Court authority pointing out that when an appellee successfully defends a judgment on an alternative ground, issue preclusion no longer attaches to the ground decided by the trial court and instead attaches to the alternative ground on which the appellate court affirms the judgment. Regarding alternative holdings, the Federal Circuit noted that on matters of preclusion law, it would follow Third Circuit law in which alternative holdings may have preclusive effect. The Federal Circuit noted that the district court’s “contingent and inconclusive language” is distinct from language typically used to signal an alternative holding, going on to distinguish language signaling alternative holdings such as “ even if the employee had produced evidence of an oral contract” or “ even were there error that was plain.” The court then explained that a contingent finding does not amount to an alternative holding, and therefore could not have preclusive effect. Sebela was concerned that the utility and written description findings would be given preclusive effect against similar patent claims that Sebela had asserted in a separate patent infringement action regarding a different patent. Instead, it sought a Federal Circuit ruling that would summarily affirm the unchallenged obviousness ruling while at the same time making clear that the Federal Circuit was not addressing the district court's findings as to utility and written description. In the appeal, Sebela did not challenge the invalidity holding based on prior art. The district court further noted that “if had found the method of treatment patents nonobvious, would have concluded that the asserted claims are invalid for lack of credible utility.” The district court further noted that “were to find the claimed methods are, it would instead find the patents invalid for lack of credible utility." Lastly, the court stated that had it not found the claimed methods to be obvious, then it “would instead find the patents invalid for lack of credible utility.” The district court used similar language in its contingent finding of invalidity based on lack of written description. The district court held that the patents were invalid as obvious over prior art. The asserted patents were directed to methods of using a drug to treat thermoregulatory dysfunction associated with menopause. The plaintiff, Sebela Ireland Limited, brought a patent infringement action against Prinston Pharmaceutical Inc. ![]() In doing so, the court highlighted the difference between alternative and contingent invalidity findings, and it held that a contingent invalidity finding, unlike an alternative invalidity finding, cannot have claim preclusive effect and therefore cannot be appealed. Prinston Pharmaceutical, the Federal Circuit held that Sebela’s appeal challenged only contingent patent invalidity findings and dismissed the appeal for lack of constitutional standing. ![]()
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