On August 21, 2009, the Federal Circuit granted a petition for rehearing en banc in Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., No. 08-1248. The Court vacated its April 3, 2009, opinion, in which it had reversed the district court and granted Eli Lilly and Company’s motion for JMOL that Ariad Pharmaceuticals, Inc.’s U.S. Patent No. 6,410,516 failed to meet the written description requirement of 35 U.S.C. § 112. The Court ordered the parties to fi le new briefs that address the following issues:
- Whether 35 U.S.C. § 112, ¶ 1, contains a written description requirement separate from an enablement requirement?
- If a separate written description requirement is set forth in the statute, what is the scope and purpose of the requirement?
The Court has not yet set a date for oral argument.