- Palo Alto Networks, Inc. v. Finjan, Inc.No claims unpatentablePTAB · Mar 17, 2017 · IPR2016-00955 · APJ Patrick M Boucher · IPR · Final written decision
Claims 1, 3–7, 9, 12–16, 18–23, 29, and 35 were not shown unpatentable under the asserted obviousness combinations because the art did not teach dynamically building a parse tree while receiving the incoming stream.
RulingsFinal written decision- BurdenNot shown unpatentable
“The dispositive issue is whether Petitioner demonstrates, by a preponderance of the evidence, that the combination of Chandnani and Kolawa teaches or suggests “dynamically building” a parse tree “while” receiving an incoming stream of program code. Although the specific language differs in immaterial respects by reciting or omitting the structural elements of a “computer” or a “receiver,” such a limitation appears in each of independent claims 1, 9, 22, 23, 29, and 35 through a combination of recitations that include receipt of the incoming stream of programming code and “dynamically building” the parse tree “while” receiving the incoming stream. Petitioner contends that all limitations of independent claims 1, 9, 22, 23, 29, and 35 are taught by Chandnani “except for the use of a parse tree to store and analyze programming code,” and that “[i]t would have been obvious to combine Chandnani’s scanner with the parse-tree teachings of Kolawa” to meet the full set of limitations of each independent claim. Pet. 2001, 19–20. Although the parties agree that Chandnani describes lexical analysis of a “data stream” to generate a stream of tokens, they disagree whether Chandnani discloses that such lexical analysis occurs while receiving the incoming data stream, as recited in each of the independent claims. That is, the parties disagree whether Chandnani discloses a time period for generation of the token stream that overlaps a time period during which the incoming stream is received, as required by our construction of “dynamically building.”” slip op. at 16
- Obviousness (§103) › Motivation to combine / reasonable expectation of successNot reached
“The dispositive issue is whether Petitioner demonstrates, by a preponderance of the evidence, that the combination of Chandnani and Kolawa teaches or suggests “dynamically building” a parse tree “while” receiving an incoming stream of program code. Although the specific language differs in immaterial respects by reciting or omitting the structural elements of a “computer” or a “receiver,” such a limitation appears in each of independent claims 1, 9, 22, 23, 29, and 35 through a combination of recitations that include receipt of the incoming stream of programming code and “dynamically building” the parse tree “while” receiving the incoming stream. Petitioner contends that all limitations of independent claims 1, 9, 22, 23, 29, and 35 are taught by Chandnani “except for the use of a parse tree to store and analyze programming code,” and that “[i]t would have been obvious to combine Chandnani’s scanner with the parse-tree teachings of Kolawa” to meet the full set of limitations of each independent claim. Pet. 2001, 19–20. Although the parties agree that Chandnani describes lexical analysis of a “data stream” to generate a stream of tokens, they disagree whether Chandnani discloses that such lexical analysis occurs while receiving the incoming data stream, as recited in each of the independent claims. That is, the parties disagree whether Chandnani discloses a time period for generation of the token stream that overlaps a time period during which the incoming stream is received, as required by our construction of “dynamically building.”” slip op. at 16
- Expert testimonyPatent owner expert creditedPetitioner expert discountedDecided for patent owner
“We have considered the opinions of both experts and the underlying bases for those opinions. In light of specific disclosures in Chandnani, we conclude that Patent Owner’s expert, Dr. Medvidovic, articulates the more compelling position. Of particular relevance is the following disclosure from Chandnani: The script language virus detection methodologies described herein may be performed by a computer in one or a combination of the following circumstances. The script language virus detection methodologies may be performed periodically (e.g., once/twice per day) or at selected times (e.g., each time the computer is powered up or restarted) by the computer on all relevant electronic files. In addition, the script language virus detection methodologies may be performed on a file (or a data stream received by the computer through a network) before the file is stored/copied/executed/opened on the computer. Ex. 1003, col. 9, ll. 6–16 (emphasis added). In considering this passage, Petitioner’s expert, Dr. Rubin, makes the conclusory statement that “[t]hus, under [Patent Owner’s] own interpretation of the claim language, the Chandnani+Kolawa combination teaches the ‘dynamically building’ limitation.” Ex. 1002 ¶ 167. We accord such a conclusory assertion little weight. See Verlander v. Garner, 348 F.3d 1335, 1371 (Fed. Cir. 2003) (Board has discretion to accord little weight to broad conclusory statements from expert witness).” slip op. at 18
- Skill levelSkill level petitioner adoptedDecided for petitioner
“2. Level of Skill in the Art Based on its expert’s testimony, Petitioner contends that a person of ordinary skill in the art at the time of the claimed invention would have held a bachelor’s degree or the equivalent in computer science or related academic fields, and three to four years of additional experience in the field of computer security, or equivalent work experience. Pet. 2001, 14 (citing Ex. 1002 ¶ 33). Patent Owner does not dispute Petitioner’s contention, and its expert’s opinion on the level of ordinary skill is generally similar to that of Petitioner’s expert, differing only by about a year in minimum work experience and suggesting an advanced degree as a substitute for work experience. See Ex. 2007 ¶ 37. Furthermore, Patent Owner’s expert, Dr. Medvidovic, asserts that the opinions stated in his Declaration “would be the same if rendered from the perspective of a person of ordinary skill in the art set out by [Petitioner’s expert,] Dr. Rubin.” Id. at ¶ 40. Based on the expert testimony in the record, we agree with and adopt the level of skill advocated by Petitioner.” slip op. at 10
Patent outcomesUS 8,225,408 not shown unpatentableClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 8,225,408 - Palo Alto Networks, Inc. v. Finjan, Inc.No claims unpatentablePTAB · Mar 17, 2017 · IPR2015-02001 · APJ Patrick M Boucher · IPR · Final written decision
Claims 1, 3–7, 9, 12–16, 18–23, 29, and 35 were not shown unpatentable because the asserted combinations did not teach dynamically building a parse tree while receiving code.
RulingsFinal written decision- Expert testimonyPetitioner expert discountedDecided for patent owner
“We have considered the opinions of both experts and the underlying bases for those opinions. In light of specific disclosures in Chandnani, we conclude that Patent Owner’s expert, Dr. Medvidovic, articulates the more compelling position. Of particular relevance is the following disclosure from Chandnani: The script language virus detection methodologies described herein may be performed by a computer in one or a combination of the following circumstances. The script language virus detection methodologies may be performed periodically (e.g., once/twice per day) or at selected times (e.g., each time the computer is powered up or restarted) by the computer on all relevant electronic files. In addition, the script language virus detection methodologies may be performed on a file (or a data stream received by the computer through a network) before the file is stored/copied/executed/opened on the computer. Ex. 1003, col. 9, ll. 6–16 (emphasis added). In considering this passage, Petitioner’s expert, Dr. Rubin, makes the conclusory statement that “[t]hus, under [Patent Owner’s] own interpretation of the claim language, the Chandnani+Kolawa combination teaches the ‘dynamically building’ limitation.” Ex. 1002 ¶ 167. We accord such a conclusory assertion little weight. See Verlander v. Garner, 348 F.3d 1335, 1371 (Fed. Cir. 2003) (Board has discretion to accord little weight to broad conclusory statements from expert witness).” slip op. at 18
- Skill levelSkill level petitioner adoptedDecided for petitioner
“2. Level of Skill in the Art Based on its expert’s testimony, Petitioner contends that a person of ordinary skill in the art at the time of the claimed invention would have held a bachelor’s degree or the equivalent in computer science or related academic fields, and three to four years of additional experience in the field of computer security, or equivalent work experience. Pet. 2001, 14 (citing Ex. 1002 ¶ 33). Patent Owner does not dispute Petitioner’s contention, and its expert’s opinion on the level of ordinary skill is generally similar to that of Petitioner’s expert, differing only by about a year in minimum work experience and suggesting an advanced degree as a substitute for work experience. See Ex. 2007 ¶ 37. Furthermore, Patent Owner’s expert, Dr. Medvidovic, asserts that the opinions stated in his Declaration “would be the same if rendered from the perspective of a person of ordinary skill in the art set out by [Petitioner’s expert,] Dr. Rubin.” Id. at ¶ 40. Based on the expert testimony in the record, we agree with and adopt the level of skill advocated by Petitioner.” slip op. at 10
- Obviousness (§103) › Motivation to combine / reasonable expectation of successNot shown unpatentableMotivation not foundNot shown unpatentable
“The dispositive issue is whether Petitioner demonstrates, by a preponderance of the evidence, that the combination of Chandnani and Kolawa teaches or suggests “dynamically building” a parse tree “while” receiving an incoming stream of program code. Although the specific language differs in immaterial respects by reciting or omitting the structural elements of a “computer” or a “receiver,” such a limitation appears in each of independent claims 1, 9, 22, 23, 29, and 35 through a combination of recitations that include receipt of the incoming stream of programming code and “dynamically building” the parse tree “while” receiving the incoming stream. Petitioner contends that all limitations of independent claims 1, 9, 22, 23, 29, and 35 are taught by Chandnani “except for the use of a parse tree to store and analyze programming code,” and that “[i]t would have been obvious to combine Chandnani’s scanner with the parse-tree teachings of Kolawa” to meet the full set of limitations of each independent claim. Pet. 2001, 19–20. Although the parties agree that Chandnani describes lexical analysis of a “data stream” to generate a stream of tokens, they disagree whether Chandnani discloses that such lexical analysis occurs while receiving the incoming data stream, as recited in each of the independent claims. That is, the parties disagree whether Chandnani discloses a time period for generation of the token stream that overlaps a time period during which the incoming stream is received, as required by our construction of “dynamically building.”” slip op. at 16
- Obviousness (§103) › Objective indicia / secondary considerationsNot reached
“5. Conclusion Having considered the arguments and evidence presented by both parties, we conclude that Petitioner has not shown, by a preponderance of the evidence, that any of challenged claims 1, 9, 22, 23, 29, or 35 would have been obvious over the combination of Chandnani and Kolawa, or would have been obvious over that combination in further combination with Walls. Because the challenges of the dependent claims suffer from the same deficiencies, we further conclude that Petitioner has not shown, by a preponderance of the evidence, that those dependent claims would have been obvious over the combinations of art it presents. Because we determine that the art does not disclose “dynamically building” a parse tree “while” receiving an incoming stream of program code, we need not consider whether a further conclusion of nonobviousness is warranted because of evidence of secondary considerations.” slip op. at 24
Patent outcomesUS 8,225,408 not shown unpatentable§ 103 obviousnesscites KSR · GrahamPatents in suitUS 8,225,408 - Palo Alto Networks, Inc. / Symantec Corp. v. Finjan, Inc.No claims unpatentablePTAB · Mar 15, 2017 · IPR2016-01071 · APJ Miriam L Quinn · IPR · Final written decision
Claims 1–8, 10, and 11 were not shown unpatentable over Ross because Ross does not teach or suggest content including a call to a first function.
RulingsFinal written decision- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable
“D. OBVIOUSNESS GROUND BASED ON ROSS The Petition relies on Ross as teaching or suggesting all the limitations of claims 18, 10, and 11. Pet. 1437. Having reviewed the arguments and evidence provided by Petitioner and the arguments and evidence presented by Patent Owner, we determine that Petitioner has failed to show by a preponderance of the evidence that Ross teaches or suggests all the limitations of the challenged claims, and more particularly, “the content including a call to a first function.”” slip op. at 11
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for patent owner
“first function.” But the Specification uses the phrase “function call” in stating that “before the client computer invokes a function call that may potentially dynamically generate malicious code, the client computer passes the input to the function to the security computer for inspection.” Ex. 1001, 4:3842. The Specification also states that “the present invention operates by replacing original function calls with substitute function calls within the content, at a gateway computer, prior to the content being received at the client computer.” Id. at 4:5760. From such examples, we understand the Specification to use the phrase “function call” in the same sense that the claims recite in the phrase “call to a [] function.” That is, a “call” is part of the recited “content,” as a statement or instruction containing the function that, when executed, causes the function to provide a service. Thus, we find the dictionary definition of the term “function call” applicable here and indicative of the meaning of the term to a person of ordinary skill in the art.” slip op. at 7
- Obviousness (§103) › Motivation to combine / reasonable expectation of successNot reached
“3. Conclusion Having considered the arguments and evidence presented by both parties, we determine that Petitioner has not shown by a preponderance of the evidence that the challenged claims would have been obvious over Ross. Because we find that Ross does not teach or suggest “content including a call to a first function,” we need not consider whether Patent Owner succeeded in its attempt to prove the prior invention of the ’154 patent or whether a conclusion of nonobviousness is warranted because of evidence of secondary considerations of nonobviousness.” slip op. at 22
- Strike new argumentNew argument disregardedDecided for patent owner
“[w]hile replies can help crystalize issues for decision, a reply that raises a new issue or belatedly presents evidence will not be considered and may be returned. The Board will not attempt to sort proper from improper portions of the reply. Examples of indications that a new issue has been raised in a reply include new evidence necessary to make out a prima facie case for the patentability or unpatentability of an original or proposed substitute claim, and new evidence that could have been presented in a prior filing. Trial Practice Guide, 77 Fed. Reg. at 48767; see also Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir., 2015) (discussing that a patent owner “is undoubtedly entitled to notice of and fair opportunity to meet the grounds of rejection.”). With these guidelines in mind, we are persuaded that the above-identified argument in the Reply should not be considered in deciding this matter. As stated above, the Petition relies on Ross’s “hook functions within a hook script” as teaching or suggesting the “call to a first function.” Pet. 1718. Although the Petition relies on the understanding of a person of ordinary skill in the art when explaining Ross’s handling of the hook function, Petitioner does not assert in any meaningful way that Ross’s use of hook functions in the hook script would be modified to include calls to additional hook functions that Ross does not describe. Nor does Petitioner explain in the Petition that Ross would be modified to replace the assignment instruction with a call to the hook function. The arguments in the Reply are not explanations of how Ross’s hook functions, as taught by Ross, may be understood to include the recited “call to a first function,” as asserted in the Petition. Rather, the argument that a “call” may be added to either the security check or the hook script is an alteration of Ross, necessitated because Patent Owner correctly argues that Ross fails to teach or suggest the limitation. The contention that Ross’s embodiments would be modified, altered, or imbued with details not present in Ross is a new contention, necessary to make a case for the unpatentability of the claims, and should have been presented in the Petition. To consider the argument would unfairly prejudice Patent Owner who, after having argued there is a significant gap in Petitioner’s case, would be left without an opportunity to respond substantively to the new arguments and support its rebuttal with additional evidence, if necessary. Accordingly, we do not consider the improper arguments identified above.” slip op. at 20
Patent outcomesUS 8,141,154 not shown unpatentableClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 8,141,154 - I.M.L. Slu v. Wag Acquisition, LLCInstitution deniedPTAB · Feb 27, 2017 · IPR2016-01657 · APJ Trevor M Jefferson · IPR · Institution
The Board denied institution on all grounds because the petition did not show a reasonable likelihood that claims 1–18 were obvious over the cited combinations.
RulingsInstitution decision- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied
“III. CONCLUSION For the foregoing reasons, we are persuaded that Petitioner has not met its burden of showing a reasonable likelihood that claims 1–18 are unpatentable as obvious under 35 U.S.C. § 103(a) over (1) Chen, Chen FH, and Willebeek; (2) Chen, Chen FH, Willebeek, and Lin; and (3) Chen, Chen FH, Willebeek, and Zheng. IV. ORDER For the foregoing reasons, it is: ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is hereby denied as to all grounds raised in the Petition for the reasons stated above and no trial is instituted.” slip op. at 22
- PTAB / AIA Trials › Discretionary denial › §325(d) same art / argumentsDecided for petitioner
“U.S.C. § 325(d) because the arguments presented in the Petition are substantially similar to those advanced in the petitions we declined to institute in WebPower, Inc. v. WAG Acquisition, LLC, Case IPR2016-01162 (“WebPower-1162”) (Paper 7), which challenged the ’611 patent claims based on Chen, Chen FH, and Zheng, and the petition in Duodecad IT Services Luxembourg S.a.r.l. v. WAG Acquisition, LLC, IPR2015-01035 (“Duodecad-1035”) (Paper 8), which challenged the ’611 patent claims based on Chen and Chen FH. Prelim. Resp. 2. Petitioner argues that we should not exercise such discretion because the petitioners are different, Petitioner will be harmed by a statutory bar, and because the grounds advanced by Petitioner rely on Chen in combination with different prior art. Pet. 6–8. Petitioner’s arguments are persuasive. Although Patent Owner argues that Petitioner could have filed its Petition earlier, we do not penalize Petitioner for filing within the time allotted under 35 U.S.C. § 315(b).6 In addition, only some of the grounds in the Petition and in WebPower-11162 overlap. Although our analysis in WebPower-1162 and Duodecad-1035 provides guidance on some issues in this proceeding, we decline to exercise our discretion to deny institution under 35 U.S.C. § 325(d). 6 We acknowledge Patent Owner’s pending motion for additional discovery (Paper 7) may lead to evidence of privity with another real party-in-interest that could impose a statutory bar remains outstanding.” slip op. at 8
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation not foundNot shown unpatentable
“It would have been obvious to a POSITA to combine the teachings of Chen, Chen File History and Willebeek to use a constant fill rate at the Chen server stream buffer. Ex. 1006, Loy Decl., ¶¶ 113, 132-138. As explained above, the constant fill rate in Willebeek is suited for transmission of live audio or the live audio component of an audio-video program. Further, at the time of the Willebeek and Chen inventions, there was a demand for distribution of live media content via the Internet. The ‘611 Patent admits this as prior art. See Ex. 1001, ‘611 Patent, 1:41- 45 (“The advent of streaming media technologies . . . allowed users to ‘tune-in’ to a continuous media broadcast, or ‘stream’, such as from a radio station.”)[.] Thus, a POSITA would have been motivated to employ the live broadcast transmission facilities of Willebeek in the Chen system to expand the usefulness of the Chen system for use with live broadcasts. Ex. 1006, Loy Decl., ¶ 138. Pet. 38. Although the Petition identifies the live broadcast of Willebeek as a rationale to expand and modify Chen, it fails to address how the transmission rate determined by frame size for media files disclosed in Chen would be adapted to address the live broadcast transmission of Willebeek such that the input and output of the combined server buffer would match. Petitioner’s cited evidence depends on a series of conclusions regarding the H.263 constant bit rate data delivery and encoding of the live media, the consumption of the media base on the Willebeek and playback of the media based on Chen. See Ex. 1006 ¶ 135 (discussing how “the POSITA would understand that media delivery to Chen’s server buffer must ‘pace’ (to use Chen’s term) the live source being encoded by Willebeek’s capture system capture system”). On the present record, Petitioner has not provided sufficient argument or evidence regarding the combination of Chen and Willebeek. Based on the present record, we find that Petitioner has not presented sufficient evidence that Chen, Chen FH, and Willebeek teach the limitations of claim 1–18, as each of the challenged claims recite the “wherein the media data elements is sent at a rate that matches the constant fill rate of a server buffer, and is received at the same rate by the user computer if there are no interruptions” limitation. Accordingly, we find that Petitioner has not demonstrated a reasonable likelihood claims 1–18 are unpatentable as obvious over Chen, Chen FH, and Willebeek.” slip op. at 17
- Additional discoveryNot reached
“U.S.C. § 325(d) because the arguments presented in the Petition are substantially similar to those advanced in the petitions we declined to institute in WebPower, Inc. v. WAG Acquisition, LLC, Case IPR2016-01162 (“WebPower-1162”) (Paper 7), which challenged the ’611 patent claims based on Chen, Chen FH, and Zheng, and the petition in Duodecad IT Services Luxembourg S.a.r.l. v. WAG Acquisition, LLC, IPR2015-01035 (“Duodecad-1035”) (Paper 8), which challenged the ’611 patent claims based on Chen and Chen FH. Prelim. Resp. 2. Petitioner argues that we should not exercise such discretion because the petitioners are different, Petitioner will be harmed by a statutory bar, and because the grounds advanced by Petitioner rely on Chen in combination with different prior art. Pet. 6–8. Petitioner’s arguments are persuasive. Although Patent Owner argues that Petitioner could have filed its Petition earlier, we do not penalize Petitioner for filing within the time allotted under 35 U.S.C. § 315(b).6 In addition, only some of the grounds in the Petition and in WebPower-11162 overlap. Although our analysis in WebPower-1162 and Duodecad-1035 provides guidance on some issues in this proceeding, we decline to exercise our discretion to deny institution under 35 U.S.C. § 325(d). 6 We acknowledge Patent Owner’s pending motion for additional discovery (Paper 7) may lead to evidence of privity with another real party-in-interest that could impose a statutory bar remains outstanding.” slip op. at 8
§ 103 obviousnessDiscretionary denialPatents in suitUS 8,185,611 - Blue Coat Systems, Inc. v. Finjan, Inc.Institution deniedPTAB · Feb 16, 2017 · IPR2016-01444 · APJ Patrick M Boucher · IPR · Institution
The Board denied institution because Petitioner did not show a reasonable likelihood of prevailing on any challenged claim, relying on an uncorrected, incorrect factual premise about priority.
RulingsInstitution decision- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied
“Pet. 5 (emphasis added). Not only does this argument not account for the amended priority claim, it refers to “pending claims” that subsequently were canceled during prosecution, rather than the claims that ultimately issued. Ex. 1011, 98–109 (emphasis added); see id. at 108 (“Applicants have cancelled claims 77–97 without acquiescence to the Examiner’s reasons for rejection, and submit that rejection of these claims is thus rendered moot.” (emphasis added)). The Petition, thus, fails to link this argument to the issued claims that it now challenges. Consequently, we are not persuaded that Petitioner’s arguments regarding the once pending, but now canceled, claims can be applied properly to the challenged, issued claims in light of the amended priority claim and Applicants’ express refusal to acquiesce to the Examiner’s rejection of the canceled claims.3 It is not appropriate for the panel to correct and then reinterpret Petitioner’s Petition, and we cannot determine that Petitioner has shown a reasonable likelihood of prevailing on arguments based on an incorrect statement of the facts. Accordingly, on this record, we conclude that Petitioner has not demonstrated a reasonable likelihood of prevailing on any of its challenges, and deny the Petition.” slip op. at 8
- Obviousness (§103) › Motivation to combine / reasonable expectation of successNot reached
“We need not assess this evidence because, in view of the impact of the amendment to the ’086 patent’s priority claim entered during reexamination, Petitioner’s arguments regarding the earliest priority date of the ’086 patent are based on facts that have changed demonstrably since the filing of the Petition, namely, that the ’086 patent does not claim priority successfully to U.S. Provisional Patent Application No. 60/030,639.” slip op. at 6
§ 103 obviousnessPatents in suitUS 8,079,086 - Mexichem Amanco Holdings S.A De C.V. v. Honeywell International, Inc.Some claims unpatentablePTAB · Dec 9, 2016 · IPR2015-01309 · APJ Jon B Tornquist · IPR · Final written decision
Claims 1, 3, 5, 6, 10–13, 16, and 19 are unpatentable as obvious; claims 7–9, 14, and 15 were not shown unpatentable.
RulingsFinal written decision- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededNot reached
“Petitioner and Patent Owner propose constructions for all, or a portion of, the term “Formula I, XCF3(I), where X is a C2 unsaturated, substituted, alkyl radical.” Pet. 17–19 (proposing a construction for the term “C2 unsaturated, substituted, alkyl radical”); PO Resp. 12–15. Neither party contends, however, that express construction of this claim term, or any other term in the ’808 patent, would impact any of Petitioner’s or Patent Owner’s arguments in this proceeding. Accordingly, we determine that no claim terms require construction for purposes of this Final Written Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in controversy, and only to the extent necessary to resolve the controversy.”).” slip op. at 7
- Skill levelSkill level patent owner adoptedDecided for patent owner
“art. Patent Owner, relying upon the testimony of Dr. Bivens, asserts that one of ordinary skill in the art would have had either: “(1) a bachelor of science degree in a specialty area (such as chemical engineering or chemistry) and five years of work experience in developing/testing refrigerants, blowing agents, and propellants, or (2) a Ph.D. or masters of science degree and 2-3 years of work experience.” PO Resp. 12 (citing Ex. 2034 ¶¶ 21–24). Patent Owner’s identification of a person of ordinary skill in the art is uncontroverted and is consistent with the prior art of record. Accordingly, we adopt Patent Owner’s identification for purposes of this Final Written Decision. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (noting that the prior art itself may reflect the level of ordinary skill in the art).” slip op. at 8
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundMixed
“Accordingly, we are persuaded that: (1) Petitioner has identified where every limitation of claim 1 is disclosed or suggested in the combination of Kruse, Inagaki, and Butler; (2) Petitioner has set forth reasoned explanations supported by factual underpinnings to explain why one of ordinary skill in the art, prior to the earliest filing date of the ’808 patent, would have sought to combine Kruse, Inagaki, and Butler to achieve the invention set forth in claim 1 of the ’808 patent; and (3) Petitioner has set forth reasoned arguments, supported by record evidence, to show why a person of ordinary skill in the art would have had a reasonable expectation of success in combining Kruse, Inagaki, and Butler to achieve the composition of claim 1.” slip op. at 17
- Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for petitioner
“patent met a long-felt but unresolved need or were commercially successful, we have been directed to no persuasive evidence to demonstrate these propositions. See Graham, 383 U.S. at 17–18 (noting that “long felt but unsolved needs” and commercial success may be utilized as indicia of nonobviousness). Indeed, we have been directed to no persuasive evidence that a mixture of CO2 and a fluoroalkene of claim 1 has ever been used commercially, or that such a mixture was considered by those of ordinary skill in the art to have met a long felt but previously unresolved need.9, 10 See Tr. 51:24–52:7; Pet. Reply 9 (asserting that Patent Owner “has provided no evidence, post- or pre- issuance of the ’808 patent, of the commercial advantages or uses of the claimed compositions”). With respect to Petitioner’s prior patent applications, although Patent Owner initially characterizes these applications as relating to CO2 and partially fluorinated hydrocarbons, Patent Owner later notes that these patents are directed to blends of HFO-1234yf, CO2, and R-134a. PO Resp. 44; Ex. 2024, 12 (arguing in support of patentability that “[t]he specific 9 To be relevant, Patent Owner must show that the asserted secondary considerations are attributable to “the merits of the claimed invention beyond what was readily available in the prior art.” Asyst Techs. v. Emtrak, Inc., 544 F.3d 1310, 1316 (Fed. Cir. 2008). Here, Inagaki discloses using compounds within the scope of claim 1 of the ’808 patent as refrigerants. Patent Owner presents no persuasive evidence that the addition of CO2 to the compounds of Inagaki, or the particular ranges recited in claim 1, resulted in a product that met a long felt but unresolved need or resulted in a commercially successful product beyond what was provided in Inagaki. Thus, we are also not persuaded that there is any nexus between the asserted secondary considerations and the features of claim 1 that are not disclosed in Inagaki. 10 As Patent Owner has not demonstrated any commercial use of the claim 1 compounds for any purpose, or provided evidence that those of skill in the art considered the claimed compounds to have met an unresolved need in the art, this analysis applies equally to the dependent claims of the ’808 patent, which each depend, directly or indirectly, from claim 1. combination of trans-R1234ze and R134a and CO2 simply is not suggested in Singh, let alone in the amounts defined in claim 1”). Patent Owner does not explain sufficiently why Petitioner’s arguments directed to the patentability of a blend of three compounds, utilized in specific proportions, are necessarily applicable to the combination of Kruse, Inagaki, and Butler proposed by Petitioner, or why these arguments are otherwise strong evidence of the nonobviousness of claim 1 of the ’808 patent. Based on the foregoing, and upon review of Patent Owner’s arguments as a whole, we are not persuaded that Patent Owner’s proffered objective evidence of nonobviousness is strong or tends to refute Petitioner’s arguments and evidence with respect to the obviousness of claim 1 of the ’808 patent.” slip op. at 25
Patent outcomesUS 8,623,808 mixedClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 8,623,808 - Atlanta Gas Light Company v. Bennett Regulator Guards, Inc.Rehearing deniedPTAB · Dec 6, 2016 · IPR2015-00826 · APJ Patrick M Boucher · IPR · Rehearing
The Board denied Patent Owner’s rehearing request, leaving claims 1–8 unpatentable, and granted sanctions for Petitioner’s failure to timely update real-party-in-interest notices.
RulingsRehearing decision- RehearingRehearing, deniedDenied
“IV. REQUEST FOR REHEARING On rehearing, the burden of showing that the Decision should be modified lies with Patent Owner, the party challenging the Decision. 37 C.F.R. § 42.71(d). “The request must specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously addressed in a motion, an opposition, or a reply.” Id.” slip op. at 10
- PTAB / AIA Trials › Real party in interest / privityDecided for patent owner
“With respect to Southern Company Gas, Petitioner’s assertion ignores the fact that Southern Company Gas did not result merely from a name change, but rather also from a merger with AMS Corp. that occurred before the name change. See Paper 34, 3. In the related IPR, the Board specifically found that AGLR is a real party in interest, and it follows that the merged entity is also a real party in interest. Atlanta Gas, slip op. at 13 (PTAB Jan. 6, 2015) (Paper 88). The merger with AMS Corp. has meaningful effects that impose an obligation on Petitioner to apprise the Board that Southern Gas Company is a real party in interest. Petitioner’s failure to file timely the updated mandatory notice is especially significant in light of the central nature that the issue of AGLR’s status as a real party in interest played in the related IPR. See Atlanta Gas, Paper 87, 46:6–9 (“The problem that we have, and you will remember, we had to fight like tooth and nail to get these documents. At every turn there was an objection to producing documents related to the real party in interest issue or the privity issue.” (statement by Patent Owner at oral hearing in the related IPR)). With respect to The Southern Company, we do not credit Petitioner’s argument that The Southern Company is not a real party in interest in light of Petitioner’s explicit notification to the contrary. Petitioner cannot have it both ways, identifying The Southern Company as a real party in interest (even “out of an abundance of caution”) to ensure compliance with 35 U.S.C. § 312(b), while simultaneously maintaining that it is not a real party in interest to evade the obligations of 37 C.F.R. § 42.8(a)(3). In light of these various considerations, we conclude that Petitioner has performed conduct that warrants a sanction.” slip op. at 5
- PTAB / AIA Trials › Other PTAB motions (exclude, strike, seal, additional discovery, rehearing)Granted
“be to expunge the Decision and the request for rehearing, dismiss the Petition with prejudice, and order [Petitioner] to pay compensatory expenses and attorney fees to [Patent Owner].” Mot. 5. We disagree that this proposed sanction is proportionate to the harm suffered by Patent Owner. In particular, as Petitioner contends, the harm suffered by Patent Owner is limited because “the estoppel provisions apply to the petitioner and ‘the real party in interest or privy of the petitioner.’” Opp. 6 (citing 35 U.S.C. § 325(e)(1)) (emphasis by Petitioner). There is no requirement that a petitioner identify all of its privies in a petition, and Patent Owner’s ability to address whether The Southern Company was a privy that would give rise to estoppel was not impacted by Petitioner’s original failure to file an updated mandatory notice. Furthermore, “[a] sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” 37 C.F.R. § 42.11(d)(4) (emphasis added). We have considered, but are not persuaded by, Patent Owner’s argument that “[a]ny remedy short of termination with prejudice would encourage future petitioners to try to suppress the identification of real parties-in-interest.” Mot. 6. A more limited sanction will have sufficient deterrent effect. We determine that an appropriate sanction, proportionate to the harm suffered by Patent Owner, is to award costs and fees incurred in association with this proceeding from the time after issuance of the Final Written Decision until the date of this Decision. 37 C.F.R. § 42.12(b)(6).” slip op. at 8
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Not reached
“Although we agree with Patent Owner in the abstract that the “ordinary and customary meaning” standard applied to expired patents requires that evidence be viewed through the eyes of one of ordinary skill in the art, Patent Owner stretches that principle too far. See id. at 9–10. “[A] claim construction analysis must begin and remain centered on the claim language itself.” Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 382 F.3d 1111, 1116 (Fed. Cir. 2004). Patent Owner asks us to deviate far from this cardinal principle by incorporating features of the Fisher S254 regulator that are not recited in the claims themselves, under circumstances in which the Fisher S254 regulator is not explicitly identified as such anywhere in the specification of the ’029 patent. “Reading a claim in light of the specification, to thereby interpret limitations explicitly recited in the claim, is a quite different thing from reading limitations of the specification into a claim, to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the claim.” In re Prater, 415 F.2d 1393, 1404–05 (CCPA 1969). This is particularly the case when the standard we are obliged to apply does not afford Patent Owner a presumption of validity of the patent’s claims. For these reasons, we are not persuaded that we misapprehended or overlooked any aspect of Patent Owner’s claim-construction arguments. Nor are we persuaded that Patent Owner’s evidence in support of those arguments was inadequately considered.” slip op. at 16
Claim constructioncites PhillipsPatents in suitUS 5,810,029 - Aevoe Corp. v. Racing Optics, Inc.Institution deniedPTAB · Nov 7, 2016 · IPR2016-01165 · APJ Michelle N Ankenbrand · IPR · Institution
The Board denied institution because Petitioner did not show a reasonable likelihood that claims 1, 5, or 3–4, 7–9 were unpatentable on the asserted grounds.
RulingsInstitution decision- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)Institution denied meritsInstitution denied
“review. 35 U.S.C. § 42.4(a). We may not institute an inter partes review “unless . . . there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a). Applying that standard, and upon consideration of the information presented in the Petition and the Preliminary Response, we deny the Petition and do not institute an inter partes review.” slip op. at 2
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededOther
“A. Claim Construction The Board interprets claims in an unexpired patent using the “broadest reasonable construction in light of the specification of the patent.” 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under that standard, claim terms are given their ordinary and customary meaning in view of the specification, as would be understood by one of ordinary skill in the art at the time of the invention. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definitions for claim terms must be set forth with reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). The parties do not direct us to any claim terms that are in controversy. See Pet. 4; see generally Prelim. Resp. Upon review of the parties’ arguments and supporting evidence, we determine that no claim term requires construction for purposes of this decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“only those terms need be construed that are in controversy, and only to the extent necessary to resolve the controversy”).” slip op. at 9
- Obviousness (§103) › Motivation to combine / reasonable expectation of successNot reached
“[I]nherency may supply a missing claim limitation in an obviousness analysis.” See PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1194–95 (Fed. Cir. 2014). To establish an inherent disclosure, a party must show that the limitation at issue is “necessarily present” or “the natural result of the combination of elements explicitly disclosed by the prior art.” Id. at 1195–96 (citing In re Oelrich, 666 F.2d 578, 581 (CCPA 1981). “Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Oelrich, 666 F.2d at 581 (citations omitted). Petitioner contends that Wilson “teaches the same structural slip op. at 14
- Expert testimonyPetitioner expert discountedDecided for patent owner
“When an anticipatory reference “is silent about the asserted inherent characteristic, such gap in the reference may be filled with recourse to extrinsic evidence.” Cont’l Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991). “To establish inherency, the extrinsic evidence ‘must make clear that the missing descriptive matter is necessarily present in the thing described in the reference.’” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citation omitted). Here, Petitioner does not show sufficiently that the structure and configuration of Kitaguchi’s cover sheet necessarily, or inherently, traps air. Although Petitioner refers to the use of an adhesive along the outer periphery of Kitaguchi’s cover sheet as creating a seal that traps air between the cover sheet and the display, that argument is unsupported by sufficient objective evidence. Indeed, Petitioner directs us only to Dr. Cairns’s bare opinion testimony that the “continuous adhesive layer [illustrated in Kitaguchi’s Figure 1 embodiment] would act as a seal and trap air between the film and the display surface in the same way described in the ’545 Patent.” Ex. 1005 ¶ 20. “Expert testimony that does not disclose the underlying facts or data on which the opinion is based is entitled to little or no weight.” 37 C.F.R. § 42.65(a) (opinion testimony that does not disclose underlying facts or data “is entitled to little or no weight”); see Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir. 1985) (a lack of objective support for expert opinion “may render the testimony of little probative value in a validity determination”). Accordingly, based on the record before us, Petitioner is not reasonably likely to prevail in showing that claims 1 and 5 are anticipated by Kitaguchi.” slip op. at 19
Claim construction§ 102 anticipation§ 103 obviousnessPatents in suitUS 9,128,545 - Maxlinear, Inc. v. Cresta Technology Corp. And CF Crespe LLCSome claims unpatentablePTAB · Aug 15, 2016 · IPR2015-00594 · APJ Phillip J Kauffman · IPR · Final written decision
Claims 1–17 and 24–29 are unpatentable; claims 18–23 were not shown unpatentable because the § 103(c) safe haven bars the obviousness grounds against them.
RulingsFinal written decision- BurdenDecided for patent owner
“We agree with Patent Owner that the burden of persuasion to establish unpatentability is Petitioner’s burden and that burden never shifts to Patent Owner. See PO Resp. 3–4; 35 U.S.C. § 316(e); Nike, Inc. v. Adidias AG, 812 F.3d 1326, 1334 (Fed. Cir. 2016). Patent Owner argues that Petitioner has not met the burden of establishing that Favrat is “by another” as required by § 102(e). PO Resp. 4–25. Petitioner responds that Patent Owner is incorrect in that the burden of production has shifted to Patent Owner. Pet. Reply 2–3 (citing Dynamic Drinkware, LLC v. National Graphics, Inc., 800 F.3d 1375, 1378–79 (Fed. Cir. 2015)). The shifting burden of production is not applicable to our analysis under § 102(e). See In re Magnum Oil Tools Int’l, Ltd., 2016 WL 3974202, No. 2015-1300, slip op. at 13–18 (Fed. Cir. 2016). Patent Owner here, like the patent owner in Magnum Oil Tools, seeks to disprove Petitioner’s contention. Magnum Oil Tools, slip op. at 16. The inquiry before us is whether Petitioner has shown by a preponderance of the evidence that Favrat is “by another” as required by § 102(e).” slip op. at 14
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableUnpatentable
“Mr. Mombers, a Group B inventor, testified to the ITC that he conceived of the signal processor of claim 1, the sole independent claim of the ’792 patent, and thus conceived of every claim of the ’792 patent. All of the evidence presented to the ITC that was submitted and argued here is consistent with Mr. Mombers’s assertion. Patent Owner corroborated this testimony by stating that Favrat is prior art under § 102(e), meaning it is “by another.” Considering the entire admissible record, we determine that a 19 In re Land, 368 F.2d 866 (Fed. Cir. 1966), is also distinguishable because the patents were related. preponderance of the evidence demonstrates that Favrat is “by another” as required by § 102(e).” slip op. at 23
- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableNot shown unpatentableMixed
“Consequently, with regard to claims 3, 6–10, and 12–17, Patent Owner has failed to carry its burden of establishing when the ’792 patent “was made.” As a result, the safe haven of § 103(c) does not apply, and we need not reach the question of common ownership or obligation of assignment as of the filing date of the ’792 patent. b) Claims 18–23 The evidence provided by Petitioner does not address claims 18–23. See Ex. 1212, 5–6. That is, Patent Owner did not assert these claims were conceived and reduced to practice at an earlier date. Given the absence of evidence to the contrary, the presumption that the ’792 patent “was made” as of its filing date applies. Our inquiry is then whether as of that date, Favrat and the ’792 patent were “owned by the same person or subject to an obligation of assignment to the same person.” See 35 U.S.C. § 103(c)(1). As explained above, Patent Owner asserts, with supporting evidence, that Favrat and the ’792 patent were commonly owned as of the filing date of the ’792 patent. Petitioner provides no evidence to the contrary regarding 23 Petitioner contends, without supporting evidence, that because the references asserted against Patent Owner in the ITC proceeding predated even the May 2001 date, Patent Owner changed to rely upon the filing date of the ’792 patent as the priority date. Pet. Reply 19 n.9. common ownership or evidence of assignment as of the filing date of the ’792 patent. Rather, Petitioner provides argument and evidence regarding common ownership and obligation of assignment for dates prior to the filing date of the ’792 patent. See Pet. Reply 17–24. We need not consider this argument and evidence as it does not pertain to the date at issue (i.e., the filing date of the ’792 patent, which is the date that claims 18–23 were made). In light of this, Patent Owner has demonstrated that claims 18–23 are subject to the safe haven of § 103(c). Consequently a ground of unpatentability based on obviousness may not be asserted against Patent Owner for these claims.” slip op. at 27
- Novelty / Anticipation (§102) › Prior-art status of a reference › Patents / published applications (effective date, provisional support)Not reached
“because it is in response to Patent Owner’s argument in the Response that Favrat is not prior art under § 102(a). See PO Resp. 22 n.2; Paper 71, 1. However, this does not end our inquiry. If the assertion that Favrat is prior art under § 102(a) was required to be in the Petition, then the fact that the issue was raised in Patent Owner’s Response does not cure that oversight. As the Federal Circuit recently emphasized, It is of the utmost importance that petitioners in the IPR proceedings adhere to the requirement that the initial petition identify “with particularity” the “evidence that supports the grounds for the challenge to each claim.” 35 U.S.C. § 312(a)(3). Intelligent Bio-Systems, 821 F.3d 1359, 1367–68 (Fed. Cir. 2016); see also 37 C.F.R. § 42.104(b)(2) (requiring a petition to specify the specific statutory grounds under 35 U.S.C. § 102). Prior to filing of the instant Petition, Petitioner knew from Patent Owner’s contentions in the ITC proceeding that the safe haven of § 103(c) was a potential issue. See Ex. 1207, 3. Even armed with this knowledge, Petitioner chose not to assert in the Petition that Favrat is prior art under § 102(a). If Petitioner had asserted both § 102(a) and § 102(e), perhaps Patent Owner would have chosen a different response and the evidence in this proceeding would have developed differently. In the particular circumstances of this case, adding consideration of § 102(a) at this late date would deprive Patent Owner of due process. Consequently, we do not consider Petitioner’s contention that Favrat is prior art under § 102(a).” slip op. at 29
Patent outcomesUS 7,265,792 mixed§ 102 anticipation§ 103 obviousnessPatents in suitUS 7,265,792 - Par Pharmaceutical, Inc. / Amneal Pharmaceuticals, LLC v. Jazz Pharmaceuticals, Inc.All claims unpatentablePTAB · Jul 27, 2016 · IPR2015-01818 · APJ Brian P Murphy · IPR · Final written decision
Claims 1–11 of the ’730 patent and claims 1–15 of the ’988 patent are unpatentable as obvious over the Advisory Committee Art, with claims 2 and 10 of the ’988 patent also obvious over that …
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“In view of the claims at issue here, we are not persuaded that the level of ordinary skill in the art is limited to the level of skill or interest of a pharmacist that dispenses FDA-approved drugs, such as one that “sits behind the counter at Walgreens.” Id. at 31:1–5. We adopt the level of ordinary skill in the art as described by Petitioner and its witness, Dr. Valuck, because it is consistent with the subject matter before us, the ’730 patent, and with prior art of record, such as Talk About Sleep (Ex.1033), Honigfeld (Ex. 1034), Elsayed (Ex. 1035), and Lilly (Ex. 1036). See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (explaining that the prior art itself can reflect the appropriate level of ordinary skill in the art).” slip op. at 12
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed petitioner constructionTerm construed board ownMixed
“Upon considering all of the evidence before us, we are not persuaded that the plain and ordinary meaning of “periodic” in the context of the ’730 patent limits “periodic reports” to those generated only at regular intervals, as Patent Owner contends. PO Resp. 28. Rather, the term includes reports generated at regular intervals and reports generated “now and again” or “intermittently,” without any particular regularity in time between events. Thus, we construe “periodic reports” as recited in the challenged claims to refer to reports that are generated at regular intervals or intermittently, i.e., now and again, including those not generated at regular intervals.” slip op. at 18
- Novelty / Anticipation (§102) › Prior-art status of a reference › Printed publication / public accessibilityPrinted publication establishedDecided for petitioner
“For the reasons given above, we find Petitioner’s evidence sufficient to prove by a preponderance that Exhibits 1004–1006 were publicly accessible on the FDA’s website not later than July 1, 2001.” slip op. at 35
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundDecided for petitioner
“of the ’730 patent (and claims 1, 4–9, and 12–15 of the ’988 patent) would have been obvious over the ACA (Exhibits 1003–1006), because the ACA is a public disclosure of the proposed risk management system for Xyrem—the same system covered by the ’730 and ’988 patents. Pet. 18–38; Reply 1. Petitioner relies on the Declaration testimony of Dr. Valuck in support of its argument that a POSA would have had “ample” reason to combine the ACA documents because the documents were prepared for the Advisory Committee Meeting and “relate to the same restricted distribution program, which the meeting was convened to discuss.” Pet. 19 (citing Ex. 1007 ¶ 51). Petitioner asserts, in particular, the Preliminary Clinical Safety Review (Ex. 1004), Briefing Booklet (Ex. 1005), and Xyrem Video and Transcript (Ex. 1006) were “all distributed together for a single meeting before the FDA seeking approval for prescription Xyrem®,” and the FDA Advisory Committee Transcript and Slides (Ex. 1003) was “a public transcript of and presentation given at the meeting itself.” Id. at 19 (citing Ex. 1007 ¶ 51) (emphasis added). In addition, according to Petitioner, all four ACA documents “clearly relate to the same restricted distribution program, which the meeting was convened to discuss,” and are “all linked from a single [web] page.” Id. Patent Owner does not address directly the cited evidence in the context of motivation to combine the ACA. Patent Owner challenges the motivation of a POSA to confirm that a patient has read the Xyrem educational material prior to shipping the drug product to the patient (step 1.4), an issue we address below. PO Resp. 37, 49–59. We agree with Petitioner’s analysis and determine that a POSA would have had ample motivation to combine the ACA documents, which were prepared at the same time, relate to the same drug product and the same restricted drug distribution system, were discussed together at the same Xyrem Advisory Committee Meeting, and were made available via file links from a single FDA web page.” slip op. at 39
Patent outcomesUS 7,668,730 unpatentableClaim construction§ 102 anticipation§ 103 obviousnesscites KSRPatents in suitUS 7,668,730
Holdings, summaries, rulings, issues, outcomes, winners and claim constructions shown for a decision were generated by a large language model reading the opinion. They are a guide to the decision, not the decision. Confirm every one against the court's own text before relying on it. Outcomes read from the patent owner’s side. Party names are extracted from the decision and are missing on about 900 short Director denials and scans, which carry the trial number instead.