Enzo Biochem, Inc. v. Gen-Probe Inc.
Court of Appeals for the Federal Circuit
296 F.3d 1316 (2002)
Enzo (plaintiff) sued Gen-Probe (defendant) for infringement of a patent claiming nucleic acid probes of a species of bacteria that would assist in its detection.. Gen-Probe moved for summary judgment on the ground that the claims were invalid for failing to meet the requirements of 35 U.S.C. §112, ¶ 1, which the district court granted. 35 U.S.C. §112, ¶ 1 states that an inventor must set forth a written description of his invention, enabling one of skill in the art to make and use it, and put forth the best mode known the inventor at the time of filing. The Federal Circuit initially affirmed the district court ruling, but, after granting a petition for rehearing, reversed and remanded. A Federal Circuit judge not on the panel that heard the appeal polled the circuit judges to determine if the case should be re-heard en banc. This poll failed, and Judge Rader dissented from the decision not to re-hear the case en banc, believing that the law needed to be revisited. Judge Lourie, on the other hand, filed a concurrence with the order on the en banc rehearing, believing that the state of the law did not require the full Court to review it.
Rule of Law
Holding and Reasoning
Concurrence (Lourie, C.J.)
Dissent (Rader, C.J.)
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