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Jason Wiener is an Associate at Merchant &amp; Gould, located in Alexandria, Virginia. His practice focuses on Hatch-Waxman litigation and Section 337 investigations.&nbsp;

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Intrigued by developing chemical and biological technologies, Jason attended the University of California, Berkeley. He earned his Bachelor of Science with a concentration in biotechnology and minors in Food Systems and Journalism.

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During his studies, Jason worked on sequencing genomes to optimize agriculture and improve nutrition. After observing the patent battle over CRISPR technologies, he pivoted his career path from research to litigation. &nbsp;

Jason attended Wake Forest University School of Law in North Carolina. He was on the editorial staff for the Wake Forest Law Review and received the James F. Hoge Memorial Award for his outstanding submission to the journal.

After law school, Jason served as a law clerk at the U.S. Court of Federal Claims, Office of Special Masters (aka the Vaccine Court), merging his passions of biology and litigation.

As a client advocate, Jason’s top priority is to provide trustworthy counsel and accurate information. He conducts in-depth research to deliver the most up-to-date developments pertaining to a client’s legal situation.

Jason’s love of language and background in biotechnology make him an ideal advocate for clients involved in pharmaceutical litigation. His objective technical and legal research enable him to craft creative strategies for clients. After understanding the technology or problem at hand, Jason endeavors to optimize persuasion and impact.

To build a strong foundation of trust, Jason is fully transparent about his research findings. He always provides his honest assessment of a litigation issue, and he’s upfront about any uncertainty. By leaving room for revisions and updates on a developing issue, Jason helps clients and the legal team determine the best way forward.

Jason loves his work and supporting clients. He’s motivated by his passion for the subject matter and dedication to making a difference.

Originally from Georgia, Jason now happily resides in Virginia. In his spare time, he enjoys taking long walks, playing with his cat, and reading nonfiction genres, such as psychology, linguistics, and biology. He also enjoys growing his own food and maintaining an indoor hydroponics garden.

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Wake Forest University School of Law - Winston Salem, NC, J.D., May 2020, 

University of California - Berkeley, B.S. Concentration in Biotechnology, May 2017, 

Pharmaceuticals

Washington, D.C. Area

Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in <a href="https://cafc.uscourts.gov/opinions-orders/21-2063.OPINION.8-16-2023_2174973.pdf">Incept LLC v. Palette Life Sciences, Inc., Nos. 2021-2063, -2065 (Aug. 16, 2023)</a>, affirming the Patent Trial and Appeal Board’s determination that two Incept patents were unpatentable over the prior art.



Incept’s patents, U.S. Patent Nos. 8,257,723 and 7,744,913, relate to methods for treating cancer using a filler between a radiation target tissue and non-target tissue. The claims recite a filler that is (1) biocompatible, (2) injectable, (3) a gel in a patient, (4) removable by biodegradation, (5) and introduced between a radiation target and nearby tissue. Palette petitioned for Inter Partes Review, contending the claims were anticipated by and/or obvious in view of the prior art, including U.S. Patent No. 6,624,245 (“Wallace”). The Board instituted IPR and issued decisions holding the challenged claims to be unpatentable.



Incept appealed. It contended the Board’s anticipation analysis was an improper “patchwork approach” used to fit together different pieces from the prior art’s teachings. Incept also argued the Board failed to identify teachings in Wallace that any of its compositions are “entirely removable by biodegradation” and that any of its compositions are placed “between an organ and a nearby tissue.” Regarding obviousness, Incept argued the Board erred by (1) merely reiterating its anticipation analysis; (2) disregarding statements in Wallace that teach away from the claimed biodegradable compositions; (3) failing to separately analyze obviousness of the dependent claims; and (4) disregarding Incept’s commercial success evidence.



The Federal Circuit affirmed. It found no error in the Board’s anticipation analysis because Wallace describes compositions that have the claimed characteristics and discloses the compositions referenced in the challenged patent claims. It also held that the Board’s anticipation findings were supported by substantial evidence. The Court likewise rejected each of Incept’s obviousness challenges. First, because it had affirmed the anticipation analysis, the Court held that the Board’s reliance on that analysis for obviousness was not erroneous. Second, the Court determined that Wallace did not teach away because it did not discourage investigation into the claimed invention. Third, the Court found that the prior art taught each element of the dependent claims, and that Incept did not separately argue the patentability of the dependent claims before the Board. Finally, the Court found no error in the Board’s determination that Incept’s commercial success evidence was insufficient.

CAFC Affirms PTAB Decision of Unpatentability

Merchant &amp; Gould P.C., a national technology and trial law firm, is pleased to announce a crucial victory for our clients TYC Brother Co., Ltd. and Genera Corp. before the U.S. International Trade Commission (ITC). In a pair of investigations concerning design patents related to automotive lamps, the ITC found no violation of section 337 by TYC Brother and Genera based on Complainants Hyundai’s and Kia’s failure to satisfy the ITC’s domestic industry requirement.



Merchant and its co-counsel Holland Law LLP were retained to defend TYC Brother and Genera against twin complaints filed with the ITC by automotive manufacturers Hyundai and Kia. The complaints asserted a combined 41 design patents against TYC Brother and Genera’s replacement headlights and taillights and sought orders that would have stopped all imports and domestic sales of those products.



An early evidentiary hearing was ordered under the ITC&#8217;s early disposition pilot program to determine whether the complainants satisfied the ITC’s domestic industry requirement. These investigations are the only ones to date for which the pilot program has been used.



Merchant identified numerous flaws in the complainants’ domestic industry evidence and analysis and developed a comprehensive record supporting our clients&#8217; positions. Following the ALJ’s initial determination, Merchant obtained full review by the ITC and submitted extensive briefing.



After considerable deliberations, the ITC agreed with Merchant, concluding that the complainants failed to satisfy the domestic industry requirement as to all 41 asserted patents. As a result, the ITC terminated the investigations with findings of no violation by TYC Brother and Genera, enabling their accused lamps to remain available to U.S. consumers, securing their access to high-value replacement parts.



&#8220;We are thrilled with the ITC&#8217;s ruling in favor of our clients, TYC Brother Co., Ltd. and Genera Corp. From the outset, we were confident in our case and in the merits of our clients&#8217; position. This outcome underscores the importance of thorough domestic industry analysis in section 337 investigations. And it is a significant win, both for the Respondents and for U.S. consumers who will continue to have access to high-quality, affordable automotive parts,&#8221; said Josh Hartman, Lead Counsel at Merchant &amp; Gould.&nbsp;

ITC Rules in Favor of TYC Brother Co., Ltd., and Genera Corp., Represented by Merchant & Gould

Chemical & Life Sciences

ITC Section 337 Investigations

Lisa Amos

Associate

Jason M. Wiener

&#8220;Social Media and the Message: Facebook, Forums, and First Amendment Follies,&#8221; 55 Wake Forest L. Rev. 217 (2020).

Publications & Speaking Engagements

James F. Hoge Memorial Award (Best Submission to the Wake Forest Law Review, 2018-2019)

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Law Clerk at the U.S. Court of Federal Claims, Office of Special Masters

Jason M. Wiener

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