A ruling is expected shortly in what is being described as a ‘David vs. Goliath’ battle that may alter the landscape for patent law, according to an interesting piece in The Wisconsin Law Journal. At issue is what’s known as ‘written description,’ which refers to the requirement that a patent must describe the technology that one seeks to patent and the goal is to clearly convey the info that an applicant has invented the item that is claimed (here are the guidelines from the US Patent & Trademark Office).

Specifically, an eight-year-old case between Ariad Pharmaceuticals and Lilly may soon determine whether patents must include a written description of an invention in order to be valid. The case began in 2002, when Ariad sued Lilly over patent infringement. A jury trial in 2006 found that two Lilly’s drugs infringed on Ariad’s patent, and awarded Ariad $65 million. Lilly moved to vacate the decision and cited, among others, a lack of written description in Ariad’s patent. The motion was later denied, Lilly appealed and, last April, the Federal Circuit overturned the denial, according to the law journal.

So Ariad filed a petition for rehearing to revisit the ruling. In an unusual move, the full court ruled that Ariad’s argument warranted reconsideration and vacated its own opinion. Both drugmakers were ordered to prepare arguments about whether federal statutes contain a written description requirement, and, if so, what the “scope and purpose” of that requirement is, the paper writes.

If the written description requirement were eliminated, smaller biotech companies and universities could succeed with broader claims, according to J.P. Meara, a patent attorney at Foley & Lardner. But if the court rules against Ariad, smaller companies and universities will “continue to be at a disadvantage compared to larger companies,” he tells the law journal.

One patent attorney, Tim Newholm, says big companies like Lilly prefer enforcement of the written description rule to avoid giving rivals a broader spectrum of potential claims. “The concern is that companies can see what’s coming out on the market and couch language on their application to cover what other companies are doing, despite the fact that it is not clear at the time the inventor has possession of what was claimed,” he tells the law journal.

You can read more here and here.