Posts Tagged: "Ethicon Endo-Surgery v. Covidien"

The Federal Circuit, in an opinion by Judge Dyk who was joined by Judge Taranto, first held that 35 U.S.C. § 314(d) did not preclude the Court from hearing Ethicon’s challenge to the authority of the Board to render a final decision. On the merits the panel held that neither the statute nor the Constitution precludes the same panel of the PTAB that made the decision to institute inter partes review from making the final determination. The Federal Circuit also found no error in the Board’s determination that the ’070 patent claims would have been obvious over the prior art. Judge Newman dissented, concluding that in order to restore confidence in the reliability of patents as “investment incentives” the USPTO must conform the inter partes review process to the statute.