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Is DOE Now in Vogue?

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On March 27, 2023, the U.S. Supreme Court heard oral arguments in Amgen Inc. v. Sanofi, a closely watched case on the issue of enablement under 35 U.S.C. § 112(a). 

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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On March 27, 2023, the U.S. Supreme Court heard oral arguments in Amgen Inc. v. Sanofi, a closely watched case on the issue of enablement under 35 U.S.C. § 112(a). Though not the main point of contention, the doctrine of equivalents (DOE) was brought up several times during oral arguments as an avenue to capture additional claim scope. Prior to the oral arguments, legal scholars had proposed, at least in the antibody context, to marry means-plus-function claim drafting to DOE as an approach to potentially salvage genus claims. This article provides some insights on the use of DOE in life sciences cases. Read the full <a href="https://lifesciences.mofo.com/topics/is-doe-now-in-vogue" target="_blank">blog post</a>.

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Matthew protects his clients’ intellectual property and defends his clients wrongly accused of infringement. His hearing and trial experience is extensive. Whether exploring complex technical issues regarding a biologic drug, or digging into the finer points of patent law, he excels at keeping his opponents on their toes. Intellectual Asset Management 1000 remarked that Matthew is “a skilled technical lawyer and brief writer who can handle large and nuanced cases.” He has litigated patent matters in many of the top patent venues throughout the United States, including the District Courts of California, Texas, Delaware, and New Jersey, the Federal Circuit, and the International Trade Commission.Life sciences clients often rely on Matthew’s extensive technical experience and his ability to grasp complex and cutting-edge issues quickly. His work in this area includes proceedings involving monoclonal antibodies, antibody-drug conjugates, small molecule inhibitors, vaccines, nutritional supplements, bioimplants, drug-eluting stents, blood glucose monitoring devices, plant genetics, and animal husbandry. He knows the ins and outs of the “patent dance” in Biologics Price Competition and Innovation Act (BPCIA) proceedings, and has advised clients on successful strategies for engaging in multi-phased BPCIA and Hatch-Waxman Act matters.Matthew is a registered patent attorney, and his considerable experience includes practicing before the United States Patent and Trademark Office, especially in inter partes and post-grant review proceedings. He also regularly advises clients on plant and agriculture intellectual property matters, including strategic use of plant patents, plant-variety protection certificates, and trademark rights. In addition to life sciences matters, Matthew has litigated cases involving internet firewalls, network security, virtualization, smartphone, interactive television, website, and display technologies.Matthew graduated from law school magna cum laude and was presented with the Academic Excellence Award for his graduating class. He clerked for Chief Judge James Ware (ret.) of the Northern District of California from 2007 to 2008. Before law school, Matthew received a Bachelor of Science in molecular biology.Having grown up in Alaska, Matthew has great appreciation for the outdoors. In his free time, he enjoys skiing, hiking, and trail running.

Matthew A. Chivvis

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Dr. Qiwen Zhong focuses on patent prosecution, freedom-to-operate analyses, and IP due diligence, with an emphasis on chemistry and pharmaceuticals.Qiwen obtained her J.D. from UCLA School of Law where she received the Mason Family Academic Gold Award in Business Association. During law school, Qiwen was a legal extern for the UCLA Technology Development Group, Los Angeles, where she conducted legal research on patent licensing practice, reviewed license agreements, and assisted in preparing training materials on attorney-client privilege, confidentiality, and work product. She was also a summer associate at Morrison & Foerster LLP, where she conducted legal research on lead compound analysis for chemistry patents and evaluated prior art for patentability and infringement risk, as well as drafted claims and office action responses.Qiwen earned her B.S. and Ph.D. in chemistry. During her doctoral research, she developed a surface modification strategy to achieve highly soluble carbon nanomaterials for organic solar cell, organic light-emitting diode, and field-effect transistor biosensor applications. She also investigated the photophysical and electronic properties of porphyrin-nanotube hybrids as a light harvesting and charge transporting material, characterized by transient absorption spectroscopy. Qiwen was a research scientist in a biotechnology company, where she synthesized biolinkers and was a co-inventor.Dr. Qiwen Zhong is registered to practice in California and before the U.S. Patent and Trademark Office. She is fluent in Mandarin and Cantonese.