http://www.ipwatchdog.com Patents, Software Patents, Patent Applications & Patent Law Wed, 22 May 2013 16:49:08 +0000 en-US hourly 1 http://wordpress.org/?v=3.5.1 http://www.ipwatchdog.com/2013/01/24/cafc-2012-on-the-obviousness-of-chemical-innovations-part-ii/id=33577/ http://www.ipwatchdog.com/2013/01/24/cafc-2012-on-the-obviousness-of-chemical-innovations-part-ii/id=33577/#comments Thu, 24 Jan 2013 13:30:12 +0000 Barry Herman & Jim Lennon http://www.ipwatchdog.com/?p=33577 Related posts:

1. Predicting Patentability in the Unpredictable Arts: A Look Back at the Federal Circuit’s 2012 Decisions on the Obviousness of Chemical InnovationsA few trends were readily apparent in 2012. First, pharmaceutical patent holders in litigation fared well – in a series of cases, the Federal Circuit rejected obviousness attacks in pharmaceutical patent challenges on appeal from the district courts. Second, patent holders appealing decisions from the Board of Patent Appeals and Interferences (whether it be an original application, a reexamination, or a reissue) fared poorly – the Federal Circuit affirmed several Board decisions finding chemical patent claims obvious. While these trends are not surprising, a third more subtle trend suggests chemical patents in district court litigation may be less susceptible to...
2. Petition for Rehearing en banc filed in Plasmart v. KapposThis case intrigued me from the start because it seemed rather odd that there should be a nonprecedential opinion in an appeal to the Federal Circuit necessitated by a completely adjudicated inter partes reexamination at the United States Patent and Trademark Office. Moreover, the original panel concluded that the combination of known elements resulted in a predictable result. The problem with that reasoning, however, is that not all of the elements were found within the prior art. In fact, the Board found that there are no fewer than three (3) meaningful structural differences between the invention as claimed and the...
3. KSR the 5th Anniversary: One Supremely Obvious MessOn Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching, suggestion, motivation" test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling...

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1. CAFC 2012 on the Obviousness of Chemical Innovations, Part IIIn contrast to the Federal Circuit’s 2012 decisions in the context of pharmaceutical litigation, its decisions with respect to appeals from the Board were much less favorable to those seeking patent protection. This is likely the result of the different standard applied to Board decisions – while the question of obviousness is one of law and reviewed de novo, it is based on factual findings, and the appellant must do more than simply demonstrate that the Board’s decision was wrong. Instead, the appellant will prevail only if he/she can show that the decision was not based on “substantial evidence.” Moreover,...
2. Obviousness When All Elements Not Present in Prior Art?The Tokai and Ritchie rationale seems to have never been cited by any other panels of the Court. While this may be due to many reasons, the fact that this reasoning could so easily invalidate virtually any claim in any patent, combined with the fact that it has only scarcely been utilized by the Court, suggests that this is an extraordinarily important issue for the Court as a whole to consider....
3. CAFC Rules Patent Claims Obviously Common SenseEarlier today in Perfect Web Technologies, Inc. v. Infousa, Inc. the United States Court of Appeals for the Federal Circuit determined that the district court properly ruled the relevant patent claims of US Patent No. 6,631,400 were invalid as a result of being obvious. In so doing, Judge Linn writing for the panel (consisting additional [...]...

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1. Petition for Rehearing en banc filed in Plasmart v. KapposThis case intrigued me from the start because it seemed rather odd that there should be a nonprecedential opinion in an appeal to the Federal Circuit necessitated by a completely adjudicated inter partes reexamination at the United States Patent and Trademark Office. Moreover, the original panel concluded that the combination of known elements resulted in a predictable result. The problem with that reasoning, however, is that not all of the elements were found within the prior art. In fact, the Board found that there are no fewer than three (3) meaningful structural differences between the invention as claimed and the...
2. How Much Deference Should the CAFC Give the USPTO?A factual determination of the Board is to be upheld if there is substantial evidence to support it, In re Gartside, 203 F.3d 1305, 1315 (Fed. Cir. 2000), and a finding is supported by substantial evidence if reasonable minds might accept the evidence as supporting the factual finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). This has been translated by the Federal Circuit to mean “is the determination unreasonable?” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006)....
3. KSR Fears Realized: CAFC Off the Obviousness Deep EndYesterday the United States Court of Appeals for the Federal Circuit, in a split decision with Judge Lourie writing and Judge Bryson joining, took a step forward in the evolution of the law of obviousness that confirms my worst fears about obviousness in this post-KSR era. It has been argued by many that even after KSR it is not an appropriate rejection, or reason to invalidate an issued claim, that it would be "common sense" to modify elements within the prior art in a wholly new way and then combine the "common sense" modifications. I did agree that was true,...

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1. How Much Deference Should the CAFC Give the USPTO?A factual determination of the Board is to be upheld if there is substantial evidence to support it, In re Gartside, 203 F.3d 1305, 1315 (Fed. Cir. 2000), and a finding is supported by substantial evidence if reasonable minds might accept the evidence as supporting the factual finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). This has been translated by the Federal Circuit to mean “is the determination unreasonable?” Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006)....
2. Obviousness When All Elements Not Present in Prior Art?The Tokai and Ritchie rationale seems to have never been cited by any other panels of the Court. While this may be due to many reasons, the fact that this reasoning could so easily invalidate virtually any claim in any patent, combined with the fact that it has only scarcely been utilized by the Court, suggests that this is an extraordinarily important issue for the Court as a whole to consider....
3. CAFC 2012 on the Obviousness of Chemical Innovations, Part IIIn contrast to the Federal Circuit’s 2012 decisions in the context of pharmaceutical litigation, its decisions with respect to appeals from the Board were much less favorable to those seeking patent protection. This is likely the result of the different standard applied to Board decisions – while the question of obviousness is one of law and reviewed de novo, it is based on factual findings, and the appellant must do more than simply demonstrate that the Board’s decision was wrong. Instead, the appellant will prevail only if he/she can show that the decision was not based on “substantial evidence.” Moreover,...

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1. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...
2. KSR the 5th Anniversary: One Supremely Obvious MessOn Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching, suggestion, motivation" test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling...
3. Just Common Sense: U.S. Supreme Court is Anti-InnovationIf you are anti-patent then you are anti-innovation because those who innovate are not the behemoths of industry, but rather start-up companies that absolutely require patents in order to attract funding, expand and create jobs. Thus, given the hostility toward patents it is entirely accurate to characterize the Roberts Court as anti-innovation. The Roberts Court increasingly puts hurdles in the way of high-tech job growth. You see, it is easy for anyone to characterize the Supreme Court as "pro-business" because selecting a victor in a "business case" almost necessarily means that a business has been victorious. But what business? One...

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1. Chief Judge Rader Says KSR Didn’t Change Anything, I DisagreeUpon hearing Rader make such a bold statement the first thought that ran through my mind was — Really? Did he just say that? I have heard from others for some time that Rader has been heard to say these or similar things relating to obviousness, but I just discounted them as one would discount the output of a game of telephone. After something gets stated, shared and restated there is typically little of the same message remaining. That had to be why Rader was reported to have said such curious things about obviousness and the impact of KSR. But...
2. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...
3. US Patent Office Issues Update to KSR Examination GuidelinesThe United States Patent and Trademark Office has provided an update to its Examination Guidelines concerning the law of obviousness under 35 U.S.C. 103 in light of precedential decisions from the United States Court of Appeals for the Federal Circuit issued since the 2007 decision by the United States Supreme Court in KSR Int’l Co. v. Teleflex Inc. The Updated Guidelines were published today in the Federal Register, and in response to the requests of many stakeholders the USPTO has included additional examples to help elucidate the ever-evolving law of obviousness. These guidelines are intended primarily to be used by...

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1. Prometheus Diagnostic Methods Are Patentable Subject MatterUnited States Court of Appeals for the Federal Circuit issued a decision in one of the patentable subject matter cases that was returned to the Court by the Supreme Court in the wake of the Supreme Court's decision in Bilski v. Kappos. On remand, once again, the Federal Circuit held (per Judge Lourie with Judge Rader and Judge Bryson) that Prometheus’s asserted method claims are drawn to statutory subject matter, reversing for the second time the district court’s grant of summary judgment of invalidity under § 101....
2. Selective Precedent Amnesia: The Nonsensical Reasoning in the Supreme Court’s Mayo Collaborative Services Decision Part 3*You could attribute what happened here to “selective precedent amnesia.” But frankly such mishandling of binding Supreme Court precedent in Mayo Collaborative Services is a huge problem. (As one commentator has astutely noted, we now have Supreme Court precedent going off in two diametrically opposed directions on essentially the same patent-eligibility issue.) Any persuasiveness (or balance) in the opinion in Mayo Collaborative Services is greatly undermined by failing to directly (and fairly) address Diehr. ...
3. Chakrabarty Controls on Isolated DNA Sequences, not Mayo*Unfortunately this unspecific remand by the Supreme Court in AMP vacates as well the two-to-one ruling by this same Federal Circuit panel (Judges Lourie and Moore in the majority, Judge Bryson in dissent) that the claimed isolated DNA sequences were also patent-eligible under 35 U.S.C. § 101. What, pray tell, does Mayo Collaborative Services change with regard to that ruling in the original AMP decision? For those, like the plaintiffs in AMP (including the ACLU), who would like to upset this “applecart,” they’re likely to be very disappointed. I can describe what should be the impact of the ruling (and...

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1. KSR the 5th Anniversary: One Supremely Obvious MessOn Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching, suggestion, motivation" test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling...
2. Patentability Overview: When can an Invention be Patented?Unfortunately, the patentability requirements are frequently misunderstood, including by the United States Supreme Court. For many who are not well versed in patent law one of the reasons it can be confusing when considering patentability is due to the fact that the first of the patentability requirements asks whether the invention exhibits patentable subject matter. This is sometimes phrased in terms of patent eligibility, which leads the many anti-patent zealots and other patent neophytes to erroneously conclude that if an invention is patent eligible then a patent issues. Nothing could be further from the truth, but those who hate the...
3. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...

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1. KSR the 5th Anniversary: One Supremely Obvious MessOn Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching, suggestion, motivation" test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling...
2. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...
3. Obviousness When All Elements Not Present in Prior Art?The Tokai and Ritchie rationale seems to have never been cited by any other panels of the Court. While this may be due to many reasons, the fact that this reasoning could so easily invalidate virtually any claim in any patent, combined with the fact that it has only scarcely been utilized by the Court, suggests that this is an extraordinarily important issue for the Court as a whole to consider....

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1. Obviousness When All Elements Not Present in Prior Art?The Tokai and Ritchie rationale seems to have never been cited by any other panels of the Court. While this may be due to many reasons, the fact that this reasoning could so easily invalidate virtually any claim in any patent, combined with the fact that it has only scarcely been utilized by the Court, suggests that this is an extraordinarily important issue for the Court as a whole to consider....
2. Petition for Rehearing en banc filed in Plasmart v. KapposThis case intrigued me from the start because it seemed rather odd that there should be a nonprecedential opinion in an appeal to the Federal Circuit necessitated by a completely adjudicated inter partes reexamination at the United States Patent and Trademark Office. Moreover, the original panel concluded that the combination of known elements resulted in a predictable result. The problem with that reasoning, however, is that not all of the elements were found within the prior art. In fact, the Board found that there are no fewer than three (3) meaningful structural differences between the invention as claimed and the...
3. Judge Kathleen O’Malley Finally Confirmed by Senate for CAFCJudge Kathleen O'Malley was confirmed by the United States Senate earlier today. O'Malley's confirmation, along with the confirmation of 18 others in recent days, is the result of a deal between Senate Democrats and Republicans that ensured passage of 19 nominations in exchange for an agreement not to move forward with other controversial nominations, including the hotly challenged nomination of Goodwin Lui, who is Associate Dean and Professor of Law at University of California Berkeley School of Law. ...

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1. KSR the 5th Anniversary: One Supremely Obvious MessOn Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching, suggestion, motivation" test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling...
2. The Roberts Supreme Court: Pro-Business and Anti-Patent?The latest edition of Fortune magazine has John Roberts, Chief Justice of the United States Supreme Court, on the cover proclaiming the Roberts Court to be the most pro-business court we have ever seen. So how can it be that the Roberts Court, which has shown hostility toward innovators and contempt for patents that is unusual, is considered pro-business? On top of that, the Roberts Court seems poised to strike at the very heart of the patent right granted by the United States federal government; namely the presumption of validity. That sure doesn't sound very pro-business to me....
3. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...

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1. Patent Wishes for 2010It is that time of the year when everyone has made or is making resolutions for the new year, most of which will undoubtedly be broken within a few days or weeks, particularly those promises to lose weight, exercise more or find more time for unwinding and better managing stress. All are things I hope [...]...
2. CAFC: Bad Actor Makes Bad Inequitable Conduct LawIntent to deceive was admitted, if you can believe that, but as it turns out the prior art withheld, a prior sale, was not invalidating and would not have lead to an appropriate rejection by the Patent Office. Nevertheless, the prior sale of an earlier version of the invention in question was the closest prior art and the Federal Circuit, per Judge Prost, explained that materiality does not require that the the withheld prior art lead to a good rejection. So Judge Prost applied the Patent Office law relative to materiality as it existed prior to the 1992 revision of...
3. Top 10 Patent Stories of the Decade 2000-2009 (Part 2)On December 21, 2009, I embarked upon identifying the top 10 patent stories of the decade, which ends as we usher in the new year.  The Top 10 Part 1 identified what I thought were in the bottom half of the top 10, and while any top 10 list is sure to be at least [...]...

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1. Reviewing the ACLU and Myriad Oral Arguments at the CAFCThe ACLU lead plaintiffs have a real predicament relative to standing. It does not sound as if the Federal Circuit believed any single plaintiff could satisfy both prongs required to bring a Declaratory Judgment Action, and rather were trying to say we have some plaintiffs with first prong evidence and some with second prong evidence. Simply put, that dog doesn't hunt, at least not under current law relative to standing. Thus, there seems a real chance that the entire case could be thrown out because no plaintiff has standing....
2. Department of Justice Seeks to Cripple Biotech Industry and Fundamentally Change Patent LawsOn Friday, October 29, 2010, practically on the eve of a national election that will in all certainty be an enormous rebuke of the Obama Administration and the Democrats' agenda in general, the Department of Justice filed an amicus brief at the United States Court of Appeals for the Federal Circuit that would destroy the U.S. biotechnology sector. In an astonishing and irresponsible policy shift that directly contradicts the long-standing policy of the United States federal government and a variety of agencies, the Department of Justice is promoting the dialing back of what is considered patentable subject matter and is...
3. Conflicting Positions on Gene Patents in Obama AdministrationOn Monday evening, November 1, 2010, David Kappos, Undersecretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, told the Dow Jones news service: "The USPTO at the present time is maintaining the status quo. We're continuing with current procedures as they are." This could set up a contentious and public policy battle between the United States Department of Commerce and the United States Department of Justice. This battle of agency titans --- DOJ v. DOC --- comes as a result of the Department of Justice filing an amicus brief in The Association of...

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1. A Method to Spur the Economy Comprising Cutting Taxes: Obviously Non-obvious and Patentable Inventions Part II Picking up on this theme and focusing on things that at first glance seem incredibly obvious but must not be at all obvious given that those who are exceptionally smart can't figure them out, I thought with tax season right around the corner it might be worthwhile to explore method of stimulating the economy by cutting taxes. I am sure there are other pieces of prior art, even some pieces of enabling prior art, or come to think of it wildly successful and unimaginably enabling prior art, but I am going to hang my hopes on secondary considerations....
2. CAFC Rules Patent Claims Obviously Common SenseEarlier today in Perfect Web Technologies, Inc. v. Infousa, Inc. the United States Court of Appeals for the Federal Circuit determined that the district court properly ruled the relevant patent claims of US Patent No. 6,631,400 were invalid as a result of being obvious. In so doing, Judge Linn writing for the panel (consisting additional [...]...
3. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...

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1. KSR the 5th Anniversary: One Supremely Obvious MessOn Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching, suggestion, motivation" test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling...
2. Another KSR RetrospectiveOn that fateful day some 27 months ago, April 30, 2007 to be precise, the United States Supreme Court decided that the well established and functional bright line rule for obviousness was too rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  No in this [...]...
3. Chief Judge Rader Says KSR Didn’t Change Anything, I DisagreeUpon hearing Rader make such a bold statement the first thought that ran through my mind was — Really? Did he just say that? I have heard from others for some time that Rader has been heard to say these or similar things relating to obviousness, but I just discounted them as one would discount the output of a game of telephone. After something gets stated, shared and restated there is typically little of the same message remaining. That had to be why Rader was reported to have said such curious things about obviousness and the impact of KSR. But...

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