A Blog About Intellectual Property Litigation and the District of Delaware

Every now and again when I look over a docket, I am reminded of the case of Jarndyce and Jarndyce, as recounted in Bleak House:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out.

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Sometimes patent law is like that.

Amgen sued Sanofi on its LDL antigen patents in 2014, when I was still in law school. Judge Robinson held the first trial in 2016. The case was appealed to the Federal Circuit and returned on remand in 2018. Judge Robinson had retired by then, so it went to Judge Andrews for a new trial. That second trial occurred in 2019, and again the losers (this time Amgen) appealed.

In 2021, the Federal Circuit upheld Judge Andrews' ruling that asserted claims were not enabled as a matter of law. Amgen appealed that decision to the Supreme Court.

It's now 2023. I am a partner, and Judge Andrews is set to take senior status at the end of this year. Today, we finally have a close to our own little Jarndyce & Jarndyce, as the Supreme Court issued its decision again affirming Judge Andrews' ruling in Amgen Inc. v. Sanofi, 98 U. S. ____ (2023):

Section 112 of the Patent Act reflects Congress’s judgment that if an inventor claims a lot, but enables only a little, the public does not receive its benefit of the bargain. For more than 150 years, this Court has enforced the statutory enablement requirement according to its terms. If the Court had not done so in Incandescent Lamp, it might have been writing decisions like Holland Furniture in the dark. Today’s case may involve a new technology, but the legal principle is the same. The judgment is Affirmed.


And so ends a great saga in Delaware patent law.

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