{"id":265,"date":"2015-11-12T20:44:59","date_gmt":"2015-11-13T01:44:59","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=265"},"modified":"2015-11-14T22:24:24","modified_gmt":"2015-11-15T03:24:24","slug":"certificate-of-correction-to-correct-information-not-available-when-patent-issued","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=265","title":{"rendered":"Certificate of Correction to Correct Information Not Available When Patent Issued"},"content":{"rendered":"<p><em>Cubist Pharmaceuticals, Inc. v. Hospira<\/em>, [2015-1197, 2015-1204, 2015-1259] (November 12, 2015), the Federal Circuit approved the use of a Certificate of Correction to correct information not available at the time the application was filed.<\/p>\n<p>At the time the application was\u00a0filed, and until well after that patent was issued, it was\u00a0universally believed that the asparagine amino acid in\u00a0daptomycin was the L-isomer of asparagine, as set forth\u00a0in the structural diagram in the patent. \u00a0Years after the issuance of the patent researchers discovered that daptomycin\u00a0actually contains the D-isomer of asparagine, not\u00a0the L-isomer.\u00a0Cubist sought to correct the error by requesting\u00a0a certificate of correction from the Patent and Trademark\u00a0Office (\u201cPTO\u201d) pursuant to 35 U.S.C. \u00a7 255, which was granted.<\/p>\n<p>In subsequent infringement litigation with Cubist, Hospira argued that the PTO\u00a0had erred by issuing the certificate of correction because\u00a0the change in the structural diagram altered\u00a0the substance of the claims, broadening their reach. \u00a0However, Cubist\u2019s expert testified that the specification made it\u00a0clear that the claims of the patent were directed to\u00a0daptomycin, not to the variant containing the L-isomer of\u00a0asparagine. Because it was plain that the claims were\u00a0directed to daptomycin, it was appropriate\u00a0for the PTO to correct the error in the structural diagram.<\/p>\n<p>The Federal Circuit said that once the PTO has issued a certificate of correction, a<br \/>\ncourt may invalidate the certificate only upon a showing\u00a0of clear and convincing evidence that it was improperly\u00a0issued, which Hospira failed to do. \u00a0The Federal Circuit said that the problem with Hospira\u2019s argument was that the\u00a0district court did not view the change in the diagram as\u00a0changing the scope of the claims at all. Instead, the district court\u00a0regarded the change as simply conforming the structural\u00a0diagram to the compound described in the\u00a0specification and covered by the claims.<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Cubist Pharmaceuticals, Inc. v. Hospira, [2015-1197, 2015-1204, 2015-1259] (November 12, 2015), the Federal Circuit approved the use of a Certificate of Correction to correct information not available at the time the application was filed. At the time the application was\u00a0filed, &hellip; <a href=\"https:\/\/patents.harnessip.com\/?p=265\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-265","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/265","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=265"}],"version-history":[{"count":1,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/265\/revisions"}],"predecessor-version":[{"id":266,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/265\/revisions\/266"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=265"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=265"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=265"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}