Gilding the Lilly: The § 112 Written Description Requirement Separate from Enablement

Abstract

On March 22, 2010, the U.S. Court of Appeals for the Federal Circuit, in Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., held that the first paragraph of 35 U.S.C. § 112 contains a written description requirement separate from the enablement requirement. In so doing, the court affirmed recent circuit precedent holding that a patentee must demonstrate possession of its invention at time of filing, in addition to enabling one of skill in the art to practice the invention. This Comment argues that the court’s stated bases inadequately support its holding and appear to skew the result towards Lilly, undermining the perceived justness of the decision.