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September 19, 2018


So the panel took a look at the claims, said, "We can't allow these!", and then found a way to reverse the CAFC, rather than first determining if burden shifting at the PTAB was proper and only thereafter making its decision (which, in the absence of burden-shifting, must be to affirm the PTAB's finding of non-obviousness). But the short-cutting of procedural protections is no surprise with Lourie and Chen on a panel in a chemical case.

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