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March 27, 2016

Comments

Kevin, "not quite a unicorn" is not quite right. As already shown in one published study I saw, the scary alleged average IPR "claim kill rate" so frequently bandied about is actually very much lower than that for the very much fewer IPRs that have been brought against pharmaceutical patents. [There are several good reasons for that.]

Well, Paul, I was referring to 1) getting the Board to decide claims were non obvious; 2) and having the CAFC affirm: after 3) getting the IPR instituted in the first place. What do your statistics say about that?

I'd be interested to know, although I get your point - I'd rather have a biotech/pharma patent in this regard than a computer or business method patent.

Thanks for the comment.

Kevin,

Another reason this case is pretty close to a unicorn is that the Federal Circuit held that a combination of references was based on improper hindsight.

Since the KSR decision, it is a rare Federal Circuit or PTAB decision that even addresses the issue of "hindsight" much less uses "improper hindsight" as a reason for determining that a combination of references is improper.

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