Careers

At M&G, we dedicate ourselves to finding the best solutions to our clients’ challenges, no matter where it takes us.

Case Studies

Industries

Offices

About Merchant & Gould

Pages

People

News Room

Practices

Staff

Home - Merchant & Gould P.C.

Alana LeFebvre is an associate in the litigation group. Her practice spans a broad range of IP and commercial disputes, including matters involving copyright, trade secrets, trademarks, patents, and business litigation. She has particular experience in the software and life sciences industries.

core/paragraph

Alana LeFebvre is an associate in the litigation group. Her practice spans a broad range of IP and commercial disputes, including matters involving copyright, trade secrets, trademarks, patents, and business litigation. She has particular experience in the software and life sciences industries.

Alana has represented clients in federal district and appellate courts, Colorado state courts, as well as in proceedings before the International Trade Commission (ITC) and in arbitration. Her practice regularly involves complex, high-stakes disputes across multiple forums.

Alana has represented clients in federal district and appellate courts, Colorado state courts, as well as in proceedings before the International Trade Commission (ITC) and in arbitration. Her practice regularly involves complex, high-stakes disputes across multiple forums.

Alana plays an active role in all phases of litigation. She has taken and defended depositions, examined witnesses during arbitration proceedings, served on trial teams in several matters, and argued motions in court. Her hands-on experience across discovery, pre-trial practice, and trial preparation allows her to contribute meaningfully to case strategy from start to finish.

Alana plays an active role in all phases of litigation. She has taken and defended depositions, examined witnesses during arbitration proceedings, served on trial teams in several matters, and argued motions in court. Her hands-on experience across discovery, pre-trial practice, and trial preparation allows her to contribute meaningfully to case strategy from start to finish.

University of Denver Sturm College of Law, J.D., 2023

University of Denver, M.A. International Relations and National Security Studies, 2015

University of Denver, B.S. Chemistry, 2014

Denver

Last week, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion in <a href="https://cafc.uscourts.gov/opinions-orders/22-1905.OPINION.4-12-2024_2300689.pdf">Luv n’ care, Ltd. v. Laurain, No. 2022-1905 (Apr. 12, 2024)</a>, affirming the district court’s judgment that unclean hands barred recovery on all counterclaims.



Luv n’ care, Ltd. and Nouri Hakim (collectively “LNC”) sued Lindsey Laurain and Eazy-PZ, LLC (collectively “EZPZ”) for acts of unfair competition and sought declaratory judgment that EZPZ’s U.S. Design Patent No. D745,327 and U.S. Patent No. 9,462,903 are invalid, unenforceable, and not infringed. EZPZ filed counterclaims for infringement of the ‘327 and ‘903 patents as well as copyright, trademark, and trade dress infringement, acts of unfair competition, and unjust enrichment. The district court found that the doctrine of unclean hands barred EZPZ from seeking relief on all counterclaims.  



The Federal Circuit affirmed. The Court found no clear error in the district court’s finding that EZPZ engaged in unconscionable conduct with respect to its claim of infringement of the ‘903 patent which bore a necessary and immediate connection to all EZPZ’s counterclaims. First, the Court held that the record supported the district court’s finding that EZPZ “by deceit and reprehensible conduct attempted to gain an unfair advantage” resulting in “loss of confidence in [EZPZ’s] candor.” EZPZ failed to disclose relevant patent applications related to the ‘903 patent until after close of discovery and dispositive motion practice without providing good faith justification, attempted to prevent LNC from discovering relevant prior art searches, and EZPZ witnesses purposefully gave false testimony.



Second, the Court held that the record supported a finding that EZPZ’s conduct bore an “immediate and necessary” connection to EZPZ’s claim of infringement of the ‘903 patent. One undisclosed patent application was directly relevant to a disputed claim term in the ‘903 patent, the prior art searches may have supported a finding that EZPZ located key references prior to filing the patent application leading to the ‘903 patent, and false testimony by EZPZ witnesses deprived LNC of material information relevant to its litigation strategy.



Finally, the Court held that the record supported a finding that EZPZ’s conduct bore an “immediate and necessary” connection to its remaining counterclaims. The district court held that “[t]he [c]ourt’s loss of confidence in a party’s candor cannot be overcome with respect to other theories of recovery” and the Federal Circuit found no clear error. Accordingly, EZPZ is barred from seeking recovery on all counterclaims.

CAFC Affirms Judgment that Unclean Hands Barred Recovery on all Counterclaims

Last week, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion in <a href="https://cafc.uscourts.gov/opinions-orders/23-1336.OPINION.7-31-2024_2359524.pdf">Sanho Corp. v. Kaijet Tech. Int’l Ltd., No. 23-1336 (Fed. Cir. 2024)</a>, affirming the PTAB’s decision that a private sale was not a “public disclosure” under 35 U.S.C. § 102(b)(2)(B).



Kaijet Technology International Limited filed a petition for inter partes review challenging as obvious most claims of U.S. Patent No. 10,572,429 owned by Sanho Corporation. Each obviousness combination relied on U.S. Patent Publication No. 2018/0165053 (“Kuo”). Although the effective filing date of Kuo predated the priority date of the ’429 patent, Sanho argued Kuo was not prior art because the inventor of the ’429 patent “publicly disclosed” the relevant subject matter through a private sale prior to the effective filing date of Kuo.



Under 35 U.S.C. § 102(b)(2)(B), a disclosure is not prior art where “the subject matter disclosed had . . . been publicly disclosed by the inventor” prior to the effective filing date of the disclosure. The PTAB concluded the private sale at issue was not a “public disclosure” and found claims 1-6 and 13-17 of the ’429 patent unpatentable as obvious over Kuo. Sanho appealed, contending the phrase “publicly disclosed” incorporates all the same disclosures as § 102(a)(1) including “on sale” and “public use.”



On appeal, the Federal Circuit considered “whether a non-confidential but otherwise private sale results in” public disclosure under § 102(b)(2)(B). First, the Court found that according to the plain language of the statute, “publicly disclosed” has a different meaning than “disclosed.” Thus, not all disclosures that fall within § 102(a)(1) are public disclosures and placing an invention “on sale” may result in a disclosure under § 102(a)(1) without constituting a public disclosure under § 102(b)(2)(B). Second, the Court looked to the purpose of the statute finding that, to serve the objectives underlying patent protection, “publicly disclosed” means the invention was made available to the public. Third, the Court found the legislative history supports a finding that an invention must be available to the public to be “publicly disclosed.”



Applying this construction, the Court found the private sale at issue was not a public disclosure because there was no evidence the subject matter of the invention was made available to the public. In fact, there was no evidence the invention was ever manufactured or delivered. Thus, the Board did not err in determining Kuo was prior art.

CAFC Affirms PTAB Decision Holding Private Sale Is Not a “Public Disclosure” Under 35 U.S.C. § 102(b)(2)(B)

Last week, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in <a href="https://www.cafc.uscourts.gov/opinions-orders/24-1094.OPINION.4-16-2026_2677411.pdf">Teva Pharmaceuticals International GmbH v. Eli Lilly and Company, No. 2024-1094 (Fed. Cir. Apr. 16, 2026)</a>, reversing the district court’s grant of judgment as a matter of law (“JMOL”) that the asserted claims of Teva’s “headache patents” are invalid for failure to satisfy the written description and enablement requirements of 35 U.S.C. § 112. 



Teva Pharmaceuticals International GmbH (“Teva”) sued Eli Lilly (“Lilly”) for indirect infringement of three patents covering methods of treating headaches using humanized anti-CGRP antagonist antibodies. A jury found willful infringement and rejected Lilly’s invalidity defenses. Although the district court acknowledged that the jury could have found that murine antibodies were known in the art and that humanization techniques were routine, it nonetheless granted Lilly’s motion for JMOL, holding the claims invalid for lack of written description and enablement.



The Federal Circuit reversed. The Court held that a reasonable jury could find adequate written description despite the specification disclosing only one humanized antibody species. Central to its reasoning were the following: anti-CGRP antagonist antibodies and methods of making them were well known in the art; humanization techniques were routine by the priority date; and the invention was not the antibodies themselves, but their use to treat headaches. Relying on Ajinomoto, Herschler,and Fuetterer, the Court distinguished between claims to a novel genus and claims that use a known genus as part of a different invention. The Court concluded that the jury could reasonably have found that the specification disclosed a “representative number of species” for the claimed method. The Court rejected Lilly’s argument that the lack of multiple humanized antibody examples was fatal and clarified that representativeness does not require disclosure of a composition structurally similar to the accused product.



The Court further held that the enablement ruling rose and fell with written description. The Court distinguished Amgen v. Sanofi, where the claims at issue covered an entire antibody genus, from the narrower claims here, which are directed only to a specific use—treating headaches. Because the jury could reasonably have found that all humanized anti-CGRP antagonist antibodies would treat headaches, the Court held that the patents did not impose an undue experimentation burden and that any additional antibody development was “extra credit,” not a required research assignment.

Alana L. LeFebvre

Practices

Education

Professional Affiliations