- Incyte Corporation v. Concert Pharmaceuticals, Inc.Rehearing grantedPTAB · Apr 9, 2018 · IPR2017-01256 · APJ Tina E Hulse · IPR · Rehearing
The Board granted Incyte’s rehearing request and instituted review of claims 1–15 on Ground 3, finding it had applied overly restrictive standards for lead compound analysis and combining references.
RulingsRehearing decision- RehearingRehearing, grantedGranted
“The party requesting rehearing has the burden to show that the decision should be modified. Under 37 C.F.R. § 42.71(d), the request for rehearing must identify, specifically, 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. When rehearing a decision on a petition, we review the decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion may arise if a decision is based on an erroneous interpretation of law, if a factual finding is not supported by substantial evidence, or if an unreasonable judgment is made in weighing relevant factors. In re Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). Having considered the Request for Rehearing, the current record, and our Decision denying institution, we are persuaded that we applied an overly restrictive standard for the lead compound analysis and for the reason to combine the cited references. See Reh’g Req. 2–12. Accordingly, we grant Petitioner’s Request for Rehearing and concurrently issue a decision granting institution on Ground 3. Paper 14.” slip op. at 3
- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)InstitutedInstituted
“Having considered the Request for Rehearing, the current record, and our Decision denying institution, we are persuaded that we applied an overly restrictive standard for the lead compound analysis and for the reason to combine the cited references. See Reh’g Req. 2–12. Accordingly, we grant Petitioner’s Request for Rehearing and concurrently issue a decision granting institution on Ground 3. Paper 14.” slip op. at 3
NonePatents in suitUS 9,249,149 - Biomarin Pharmaceutical Inc. v. Duke UniversityRehearing grantedPTAB · Jul 14, 2015 · IPR2013-00535 · APJ Sheridan K Snedden · IPR · Rehearing
The Board granted rehearing but again held claim 19 unpatentable as obvious over Reuser ’771, Van Hove 1997, and Brady.
RulingsRehearing decision- RehearingRehearing, grantedGranted
“In relation to Patent Owner’s contentions in this regard, we grant a rehearing to reconsider the teachings of Brady in relation to “Day 1.” Taking a closer look at the reference as a whole, we see that Brady discloses, in the paragraph discussed above, that “[t]he effort to immunosuppress the patient was initiated on July 26, 1993.” Ex. 1012, 3. Reading the entire paragraph, it is clear that July 26, 1993, corresponds to “Day 1” as presented in Table 1, i.e., the first day that the patient received both an immunosuppressant and enzyme therapy. Id. Earlier in the reference, Brady states that the “patient was admitted to NIH for periodic evaluation on January 21, 1992, 6 months after the initiation of enzyme replacement therapy.” Id. at 2 (under the heading “Clinical Course”). The reference also states that “[o]n March 19, 1993, 1 day after routine intravenous infusion of Ceredase, the patient experienced severe pain in his left shoulder . . . .” Id. Thus, we are persuaded by Patent Owner’s contentions that Brady does not disclose administering immunosuppressant prior to any and all administration of hGAA, as required by claim 19. Req. Reh’g 6. Accordingly, we now reconsider the arguments and evidence, including the aspects of Brady discussed above, and address the question of whether claim 19 is obvious over the combination of Reuser ’771, Van Hove 1997, and Brady.” slip op. at 6
- Obviousness (§103) › Motivation to combine / reasonable expectation of successUnpatentableMotivation foundUnpatentable
“We agree with Patent Owner that Brady does not teach prophylactically administering an immunosuppressant under our construction of claim 19. We determine, however, that the preponderance of evidence shows that the prophylactic administration of an immunosuppressant would have been a predictable variation of the use of immunosuppressant disclosed in Brady. Brady teaches administering the immunosuppressant in an “effort to immunosuppress the patient” and to reduce neutralizing antibodies in the individual. Ex. 1012, 3 (including sections titled “Intervention” and “Reduction of Neutralizing Antibody Titer”). Dr. Pastores testifies that administration of foreign protein could lead to an immune response (Pastores Dec. ¶ 94), such as the adverse immune response seen in Brady, and that hypersensitivity to replacement enzyme may be addressed by pretreatment with antihistamines or widely used immunosuppressants such as corticosteroids (Dr. Pastores ¶ 95 (citing Ex 1011, 130)).” slip op. at 12
- Expert testimonyPetitioner expert creditedDecided for petitioner
§ 103 obviousnesscites KSRPatents in suitUS 7,056,712 - Target Corporation v. Destination Maternity CorporationRehearing grantedPTAB · Feb 12, 2015 · IPR2014-00509 · APJ Lora M Green · IPR · Rehearing
The Board granted Target’s request for rehearing of the denial of institution, for the reasons given in the related IPR2014-00508 decision.
RulingsRehearing decision- RehearingRehearing, grantedGranted
“our Decision Denying Joinder of the instant proceeding with IPR2013-00533 (Paper 18), as well as our Decision Denying Institution of Inter Partes Review (Paper 19). Paper 20 (“Request for Rehearing”). Patent Owner, Destination Maternity Corporation, was authorized to file an Opposition (Paper 22), to which Petitioner was authorized to file a Reply (Paper 23). For the reasons discussed in the Decision Granting Petitioner’s Request for Rehearing in related IPR2014-00508 (Paper 28), we grant the Request for Rehearing.” slip op. at 2
None
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