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A Review of the Amicus Briefs in Ariad Pharmaceuticals v. Eli Lilly: Does the Patent Statute Mandate a Separate Written Description Requirement in 35 U.S.C. § 112, ¶ 1?

The Court of Appeals for the Federal Circuit granted an en banc rehearing in Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co., Appeal No. 2008-1248 to resolve an issue that has been simmering for most of this decade. Section 112, paragraph 1 of the patent statute, 35 U.S.C. § 1 et seq., requires the patent specification to:

contain a written description of the invention, AND of the manner and process of making and using it, in such full, clear, concise and exact terms as to enable any person skilled in the art to which it pertains to make and use the same[.]

The issue before the Court of Appeals is whether the written description requirement is a separate and distinct requirement from the enablement requirement recited in the latter part of the statute.

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