Changes Are Afoot: The Prosecution and Litigation Landscape Post KSR and the New Continuation Rules

From the U.S. Supreme Court’s decision in KSR v. Teleflex to the recent change in the continuation rules, it is clear that the ways in which patents are prosecuted and litigated will need to change. Cases including KSR, Apotex v. Pfizer, and its progeny have had significant impact on various industries warranting a deeper look at how it will affect company strategies. Foley hosted an in-depth discussion and analysis of the case law in the wake of KSR and how the new U.S. Patent and Trademark Office rules will impact the ability to obtain and enforce patents.

This conference looked at:

• What drafting styles may be problematic


• Prosecution and continuation strategies related to new Patent Office rules, including:
  
  
  
  • Limiting number of continuation applications
  
  
  • Limiting number of claims in each patent application


• Gathering evidence at an early stage to ward off an obviousness challenge


• Using experts to bolster obviousness or non-obviousness arguments


• What industries are winning or losing the battle on obviousness


• Best practices for both the plaintiff/patent owner as well as defendant/accused infringer