In the News

Kyle Musgrove in Law360: High Court Indefiniteness Test Will Spur Rush To Nix Patents

The U.S. Supreme Court's Monday decision relaxing the test for proving that a patent is indefinite will prompt accused infringers to file a flood of motions challenging patents under the new standard, but it may not result in substantially more patents being invalidated, attorneys say. >>



Recent Publications

The IP Beacon, June 2014

The IP Beacon is a Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law. >>

Supreme Court Adopts New Indefiniteness Standard

In Nautilus, Inc. v. Biosig Instruments, Inc., issued on June 2, 2014, the Supreme Court established a new legal test to determine whether a patent claim satisfies the definiteness requirement of 35 U.S.C. Section 112. >>



C. Kyle Musgrove

Partner

Washington, D.C.


800 17th Street, NW
Suite 500
Washington, District of Columbia 20006-3962
T +1 202.654.4502
F +1 202.654.4262

Areas of Practice

Education

  • J.D., University of North Carolina at Chapel Hill, 1995, with honors; Order of the Coif; Holderness Moot Court Bench; Journal of International Law and Commercial Regulation
  • Chemical Engineer, B.S., Tulane University, 1992, Omega Chi Epsilon Honor Society

Bar Admissions

  • District of Columbia
  • New York
  • U.S. Patent and Trademark Office

Court Admissions

  • U.S. Court of Appeals for the Federal Circuit
  • U.S. District Court for the District of Columbia
C. Kyle Musgrove

Kyle Musgrove has more than 15 years of experience as an intellectual property litigator. Kyle's experience includes serving as lead trial counsel and arguing appeals at the United States Court of Appeals for the Federal Circuit.

Mr. Musgrove's career has primarily been devoted to patent litigation under the Hatch-Waxman Act. A number of his cases have involved drug products with sales exceeding $1 billion per year. Despite the high stakes, Kyle has successfully obtained judgments invalidating and/or holding non-infringed the asserted claims of patents alleged to cover those products. In some instances, his strategic approach to litigation has facilitated favorable settlements for his clients while avoiding the uncertainties and expense associated with protracted litigation.  

In addition to his Hatch-Waxman practice, Kyle has litigated cases in a variety of technologies including paper and pulp bleaching, optics, cervical collars, medical devices and imaging, nutritional supplements, vaccines and methods of drug delivery. His practice includes the representation of both patentees and alleged infringers. He has practiced before the United States Court of Appeals for the Federal Circuit, various district courts, and the International Trade Commission.

Further aspects of Kyle's practice include conducting interference proceedings, counseling clients regarding possible infringement or invalidity issues, managing patent prosecution portfolios for major international clients and transactional work relating to intellectual property. 

Kyle previously authored an annually updated chapter relating to the intersection of the patent and antitrust laws for Aspen Publishing, and he has participated as litigation counsel in cases alleging antitrust violations due to "sham" litigation brought by patentees. Additionally, he was recognized by LMG Life Sciences as a "Life Science Star" in 2012 and 2013.

Mr. Musgrove was a partner at a national intellectual property boutique prior to joining Haynes and Boone.

Representative Appellate Work

  • Eurand Inc. v. Impax Laboratories, Inc., No. 2012-1280 (Argued)
  • Alza Corp. and McNeil-PPC, Inc. v. Andrx Pharmaceuticals, LLC and Andrx Corp., No. 2009-1350, 603 F.3d 935 (Fed. Cir. 2010) (Argued)
  • Impax Laboratories, Inc. v. Aventis Pharmaceuticals, Inc., 545 F.3d 1312 (Fed. Cir. 2008); earlier opinion reported at 468 F.3d 1366 (Fed. Cir. 2006) (Argued)  GlaxoSmithKline LLC v. Banner Pharmacaps, Inc., No. 2013-1593 (Pending)
  • On-Line Technologies, Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133 (Fed. Cir. 2004) 
  • Geneva Pharmaceuticals, Inc. and Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline, PLC, 349 F.3d 1373 (Fed. Cir. 2003) 
  • Evans Medical Ltd. v. American Cyanamid Co., 215 F.3d 1347 (Fed. Cir. 1999) (Unpublished)

Representative Trial Experience 

  • GlaxoSmithKline LLC v. Banner Pharmacaps, Inc. (D. Del. 2011)
  • Alza Corp. and McNeil-PPC, Inc. v. Andrx Pharmaceuticals, LLC and Andrx Corp. (D. Del. 2007) 
  • Pfizer, Inc. v. Synthon Holdings BV, et al. (M.D.N.C. 2006) 
  • SmithKline Beecham Corp. v. Teva Pharmaceuticals USA, Inc. (D.N.J. 2005) 
  • Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline, PLC (E.D. Va. 2002)

Other Representative Matters 

  • Pfizer, Inc. v. Impax Laboratories, Inc. (D. Del. 2013) (Pending)
  • Eisai Inc. v. Banner Pharmacaps, Inc. (D. Del. 2011) (Settled favorably)
  • Shionogi Pharma et al v. Impax Labs (D. Del. 2010) (Settled favorably)
  • Abbott Labs. et al. v. Impax Labs. and Elan Pharma et al. v. Impax Labs. (D.N.J. 2009) (Settled favorably)
  • In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litigation (D. Del. 2009)
  • Pfizer Inc. et al. v. Impax Laboratories, Inc. (D.N.J. 2008) (Settled favorably)
  • Purdue et al. v. Impax Laboratories, Inc. (D. Del. 2008) (Dismissed)
  • Wyeth v. Watson Pharmaceuticals, Inc. and Watson Laboratories, Inc. (D. Del. 2008) (Dismissed) 
  • Abbott Laboratories v. Impax Laboratories, Inc., (D. Del. 2007) (Settled favorably) 
  • Certain Endodontic Instruments, No. 337-TA-610 (ITC 2007) (Investigation Dismissed) 
  • Elan Corp., PLC v. Andrx Pharmaceuticals, Inc. (S.D. Fla. 2005) (Settled favorably) 
  • Abbott Laboratories, et al. v. Impax Laboratories, Inc. (D. Del. 2003) (Infringement portion of case dismissed with prejudice; client's antitrust counterclaims settled favorably) 
  • On-Line Technologies, Inc. v. Perkin-Elmer Corp., et al. (D. Ct. 1999) (Settled favorably after partial summary judgment of invalidity granted on behalf of client) 
  • Alcon Labs. v. Bausch & Lomb (N.D. Tex. 1999) (Settled favorably after preliminary injunction was granted on behalf of client)

Memberships

  • Federal Circuit Bar Association
  • The American Bar Association, Sections on Intellectual Property Law and Litigation
  • New York State Bar Association
  • District of Columbia Bar Association

Online Publications

06/21/2014 - The IP Beacon, June 2014
The IP Beacon is a Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.

06/02/2014 - Supreme Court Adopts New Indefiniteness Standard
In Nautilus, Inc. v. Biosig Instruments, Inc., issued on June 2, 2014, the Supreme Court established a new legal test to determine whether a patent claim satisfies the definiteness requirement of 35 U.S.C. Section 112.

09/30/2013 - The IP Beacon, September 2013
A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.

09/30/2013 - CPI Antitrust Chronicle Guest Article: FTC v. Actavis: Has the Dust Really Settled?
Three months now have passed following the Supreme Court's decision in FTC v. Actavis, 133 S. Ct. 2223 (2013), which subjects to "rule of reason" antitrust scrutiny certain pharmaceutical patent settlements involving a cash payment by the branded drug company to the generic drug company.

06/17/2013 - What Elephant? Supreme Court Downplays Inquiry into Patent Strength in Hatch-Waxman Settlements
The Supreme Court held today in FTC v. Actavis that so-called “reverse payment” settlement agreements are subject to antitrust law’s “rule of reason” analysis.

10/12/2012 - The IP Beacon, October 2012
A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.

06/28/2012 - C. Kyle Musgrove and Richard A. Ripley in CPI Antitrust Chronicle: Reverse Payment Settlements: Presumptively Bad or Usually Acceptable
In April 2012, the Federal Trade Commission (“FTC”) suffered yet another rebuke of what FTC Chair Jon Leibowitz has characterized as “one of the Commission’s top competition priorities,” i.e., stopping “reverse payment” settlements in drug patent litigation.

08/16/2011 - The Status Quo Wins: Clear and Convincing Proof is Still Required to Invalidate Patent Claims

08/16/2011 - The IP Beacon, August 2011
A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.

06/13/2011 - The Status Quo Wins: Clear and Convincing Proof is Still Required to Invalidate Patent Claims
The Supreme Court ruled last week in Microsoft Corporation v. i4i Limited Partnership that “clear and convincing evidence” is still the standard of proof required to invalidate a patent.

05/31/2011 - But-For Materiality and Tightened Inequitable Conduct Standards: The Therasense v. Becton, Dickinson En Banc Federal Circuit Decision
On May 25, 2011, the en banc Federal Circuit announced its decision in Therasense, Inc. v. Becton, Dickinson & Company regarding the appropriate standards for succeeding with an inequitable conduct defense.

01/27/2011 - "Pay-for-Delay" Settlements: Antitrust Violation or Proper Exercise of Pharmaceutical Patent Rights?
How the judiciary and Congress are dealing with the increased use of reverse payment settlements in the pharmaceutical industry.

11/05/2010 - Hatch-Waxman Litigation Alerts: Recent Federal Circuit Decision on Section viii Carve Outs and Inducement

10/01/2010 - The IP Beacon, October 2010