Negative Claim Limitation Finds Support in Patent

Federal Circuit states there is no heightened written description standard for negative limitations

A panel of the Federal Circuit split regarding whether a negative claim limitation had an adequate written description. The claim recited a dosing regimen of a drug “absent an immediately preceding loading dose regimen.” The majority, Circuit Judges Linn and O’Malley, felt that a person of ordinary skill reading the disclosure would understand that a “loading dose” regimen was not part of the claimed invention even though the specification did not discuss a loading dose regimen. The dissent, Chief Judge Moore, found the failure to mention and exclude a loading dose regimen fatal to the claims.