Patent Docs: Post-Grant Proceedings

Post-Grant Proceedings

April 20, 2020

Thryv, Inc. v. Click-to-Call Technologies, LP (2020)

Today, in Thryv, Inc. v. Click-to-Call Technologies, LP, the Supreme Court ruled that the provisions of 35 U.S.C. § 315(b), which preclude a petitioner from filing an inter partes review petition more than one year after being served with a complaint alleging infringement, are barred from judicial review under 35 U.S.C. § 314(d). The Court's decision reversed an en banc Federal Circuit opinion that the time bar was reviewable, Wi-Fi One, LLC v. Broadcom Corp., as well as the panel decision in the case at issue below.

The case arose after a complicated history, involving U.S. Patent No. 5,818,836, directed to methods for anonymizing telephone calls. The patent had been involved in litigation in 2001 involving a predecessor in interest to parties here, but that case had been dismissed without prejudice. When Thryv filed its petition for inter partes review in 2013, Click-to-Call argued that this earlier suit precluded the Patent Trial and Appeal Board from instituting the IPR under the provisions of 35 U.S.C. § 315(b), which provides in relevant part:

§315(b) Patent Owner's Action.— An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.

The Board disagreed, instituted the IPR, and invalidated thirteen of the '836 patent claims under §§ 102 or 103. Click-to-Call appealed, and the Federal Circuit dismissed the appeal for lack of jurisdiction under § 314(d):

§314(d) No Appeal.— The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.

Click-to-Call petitioned for certiorari but in the interim the Supreme Court had decided Cuozzo Speed Technologies, LLC v. Lee and accordingly granted the petition, vacated the Federal Circuit's judgment and remanded for consideration in view of Cuozzo.

Meanwhile, the Federal Circuit decided en banc in Wi-Fi One that the § 315(b) time bar was not "closely related" to the institution decision falling within the scope of § 314(a) and thus that the Board's determination of whether an IPR was reviewable was subject to the Court's review. Accordingly, the Court granted a panel rehearing that decided that the 2001 infringement action started the one-year clock and the IPR was time-barred under § 315(b). Today's majority opinion cited the Federal Circuit dissent in Wi-Fi One by Judges Hughes, Lourie, Bryson, and Dyk, that "§314(d) conveys Congress' 'clear and unmistakable' 'intent to prohibit judicial review of the Board's [inter partes review] institution decision.'" The Court's opinion also notes in a footnote that the Federal Circuit in its now overruled en banc WiFi One opinion held that the time bar could be triggered by a compliant that was voluntarily dismissed without prejudice, but that the Court's opinion today does not reach this issue.

The Supreme Court granted certiorari to consider the issue of whether § 314(d) precluded appellate review of the time bar determination by the PTAB under § 315(b). In an opinion by Justice Ginsberg, joined by the remainder of the Court except for Justice Gorsuch who wrote a dissent in which Justice Sotomayor joined, the Court found that § 314(d) precluded appellate review of the § 315(b) time bar.

Justice Ginsberg's opinion was succinct:

The agency's application of § 315(b)'s time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by § 314(d).

The Court's basis for this decision was the statutory language, that § 314(d) renders "final and nonappealable" the Director's decision whether to institute an inter partes review, a holding the Court attests is consistent with Cuozzo:

[O]ur interpretation applies where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office's decision to initiate inter partes review.

According to the majority, the time bar question is "closely tied" to the statutory provisions precluding judicial review because § 315(b) sets forth a circumstance in which "[a]n inter partes review may not be instituted." The opinion finds that "[w]e need not venture beyond Cuozzo's holding that §314(d) bars review at least of matters 'closely tied to the application and interpretation of statutes related to' the institution decision, for a §315(b) challenge easily meets that measurement." The opinion calls the time bar "integral to, indeed a condition on, institution" in support of its holding that § 314(d) bars review of PTAB decisions under § 315(b).

The majority voiced policy concerns that if a patent owner was allowed to appeal Board determinations under § 315(b), such appeals would "tug against that objective [providing an efficient mechanism for weeding out "bad patents," a term that is usually a signal on the philosophical leanings of the Court], wasting the resources spent resolving patentability and leaving bad patents enforceable." The Court foresaw that a patent owner would appeal on § 315(b) untimeliness grounds "only if she could not prevail on patentability, [and consequently] §315(b) appeals would operate to save bad patent claims." The Court also noted that its decision was consistent with the statutory scheme, which "so consistently elevat[es] resolution of patentability above a petitioner's compliance with §315(b)" because the Board's adjudication on the merits is thereby preserved.

The opinion further notes that, if Congress had wished to limit the extent of § 314(d) as patent owner and the dissent contend, it could have easily drafted the legislation to recite that the appellate review bar of § 314(d) be limited to Board determinations under § 314(a).

The opinion is also consistent with earlier decisions by the Court interpreting the statutory regime of inter partes review, including Cuozzo and SAS Institute Inc. v. Iancu. These decisions taken together strongly suggest that if Congress wants an administrative agency to have authority that cannot be challenged by a reviewing Court it needs to expressly grant that unreviewability status to the agency by statute. As a consequence of these decisions, the only challenge that may be available to a frank disregard of the § 315(b) time limit by the Board would be to raise such a challenge on due process grounds, an option that the Court left open explicitly in Oil States Energy Serv. LLC v. Greene's Energy Group LLC.

The dissent by Justice Gorsuch provides a different interpretation of the statute and would limit the scope of the § 314(d) reviewability bar to the institution decision and not bar any other provisions of the statute relating to inter partes review. In the views of the dissenting Justices:

Today the Court takes a flawed premise—that the Constitution permits a politically guided agency to revoke an inventor's property right in an issued patent—and bends it further, allowing the agency's decision to stand immune from judicial review. Worse, the Court closes the courthouse not in a case where the patent owner is merely unhappy with the merits of the agency's decision but where the owner claims the agency's proceedings were unlawful from the start. Most remarkably, the Court denies judicial review even though the government now concedes that the patent owner is right and this entire exercise in property-taking-by-bureaucracy was forbidden by law.

The dissent expresses a worry the majority's decision puts patentees as property holders at bureaucratic mercy without recourse to courts. "No matter how wrong or even purposefully evasive, the Director's assessment of a petition's timeliness is always immune from review" is the consequence of the majority decision, according to the dissent, and even without any ill intention ("[t]he Board can err") such errors are beyond the scope of judicial review (at least with regard to any issue involving institution decisions).

The dissent finds in the statutory language little textual support for the majority's construction, for example, there being nothing in § 315(b) regarding a determination by the Director such as is found in § 314. "To pretend otherwise would invite a linguistic nonsense" and "practical nonsense as well" according to Justice Gorsuch.

The dissent also reminds the majority (and us) that there is a presumption of judicial review that serves an important purpose under our law. Relying on The Federalist No. 48, the dissent reminds us what the Founders considered to be important about separation of powers and checks and balances between the three branches and the particular importance of the judiciary in giving citizens a remedy when aggrieved by decisions from the other branches. The Justices opine that it would be surprising "to think Congress might have imposed an express limit on an executive bureaucracy's authority to decide the rights of individuals, and then entrusted that agency with the sole power to enforce the limits of its own authority." The Justices are less concerned about (or convinced that) Congress's intent in establishing inter partes review proceedings to be an efficient way of ferreting out "bad patents." In their view, there is ample evidence that "Congress also included provisions to preserve the value of patents and protect the rights of patent owners."

Justice Gorsuch writes alone in the final section of the dissent, where he reiterates his view that the majority's decision "takes us further down the road of handing over judicial powers involving the disposition of individual rights to executive agency officials" which he believes began with the Court's decision in Oil States (a decision from which he also dissented). The Justice analogizes the consequences of that decision, (where the Court determined the patent right to be a public franchise and not a property right) to land grants. For those rights, "[n]o one thinks we would allow a bureaucracy in Washington to 'cancel' a citizen's right to his farm," and plainly the Justice doesn't think the bureaucracy that is the Patent Office should be doing so for patents, citing Hovey v. Henry, 12 F. Cas. 603, 604 (No. 6,742) (CC Mass. 1846), in support of patent rights being property rights akin to land grants. And the Justice is also concerned that:

The abdication of our judicial duty comes with a price. The Director of the Patent and Trademark Office is a political appointee. The AIA vests him with unreviewable authority to institute (or not) inter partes review. Nothing would prevent him, it seems, from insulating his favorite firms and industries from this process entirely. Those who are not so fortunate proceed to an administrative "trial" before a panel of agency employees that the Director also has the means to control. The AIA gives the Director the power to select which employees, and how many of them, will hear any particular inter partes challenge. It also gives him the power to decide how much they are paid. And if a panel reaches a result he doesn't like, the Director claims he may order rehearing before a new panel, of any size, and including even himself.

And moreover:

No one can doubt that this regime favors those with political clout, the powerful and the popular. But what about those who lack the resources or means to influence and maybe even capture a politically guided agency? Consider Mr. DuVal, who 25 years ago, came up with something the Patent Office agreed was novel and useful. His patent survived not only that initial review but a subsequent administrative ex parte review, a lawsuit, and the initiation of another. Yet, now, after the patent has expired, it is challenged in still another administrative proceeding and retroactively expunged by an agency that has, by its own admission, acted unlawfully. That is what happens when power is not balanced against power and executive action goes unchecked by judicial review. Rather than securing incentives to invent, the regime creates incentives to curry favor with officials in Washington.

And perhaps foreshadowing the issues the Court will grapple with in future, the Justice notes that Article III courts have abdicated their authority to the PTAB as an Article I court in cases like XY, LLC v. Trans Ova Genetics, L.C. and Fresenius USA, Inc. v. Baxter Int'l, Inc.

The dissent concludes:

Two years ago, this Court sanctioned a departure from the constitutional plan, one in which the Executive Branch assumed responsibilities long reserved to the Judiciary. In so doing, we denied inventors the right to have their claims tried before independent judges and juries. Today we compound that error, not only requiring patent owners to try their disputes before employees of a political branch, but limiting their ability to obtain judicial review when those same employees fail or refuse to comply with the law. Nothing in the statue commands this result, and nothing in the Constitution permits it.

The concerns expressed in the dissent are consistent with Justice Gorsuch's dissent in Oil States; what may be more interesting is Justice Sotomayor joining in expressing these concerns (although the Justice did not join the part of the dissenting opinion where these concerns were most strongly raised).

Thryv, Inc. v. Click-to-Call Technologies, LP (2020)
Opinion by Justice Ginsberg, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh, joined by Justices Thomas and Alito except for Part III–C; dissenting opinion by Justice Gorsuch, joined by Justice Sotomayor as to parts I, II, III, and IV

Posted at 11:24 PM in Post-Grant Proceedings, Supreme Court | Permalink | Comments (3)

April 15, 2020

Bozeman Financial LLC v. Federal Reserve Bank (Fed. Cir. 2020)

By Joshua Rich --

Less than two years ago, in Return Mail, Inc. v. U.S. Postal Service, 139 S. Ct. 1853 (2018), the Supreme Court held that a government entity -- in that case, the U.S. Postal Service -- is not a "person" under the America Invents Act, and therefore unable to avail itself of the AIA's post-issuance review proceedings. But the Court did not resolve whether quasi-governmental entities would be barred from post-issuance proceedings as well. Here, the twelve regional Federal Reserve Banks brought covered business method (CBM) review proceedings seeking to invalidate two Bozeman Financial patents. And the Federal Circuit found, contrary to the Supreme Court, that they are "persons," entitled to do so under the AIA.

Bozeman Financial is the assignee of U.S. Patent Nos. 6,754,640 and 8,768,840; the '840 patent issued from a continuation of a divisional of a continuation-in-part of the application that issued as the '640 patent. The patents relate to the detection of fraud in financial transactions during payment authorization and clearing. Claim 1 of the '840 patent, which is representative of all of the claims, covers:

A computer implemented method for detecting fraud in financial transactions during a payment clearing process, said method comprising:
    receiving through one of a payer bank and a third party, a first record of an electronic financial transaction from at least one of the following group: a payer, a point-of-sale terminal, an online account and a portable electronic device;
    storing in a database accessible by each party to said payment clearing process of said electronic financial transaction, said first record of said electronic financial transaction, said first record comprising more than one parameter;
    receiving at said database at least a second record of said electronic financial transaction from one or more of a payee bank and any other party to said payment clearing process as said transaction moves along said payment clearing process, wherein said second record comprises at least one parameter which is the same as said more than one parameter of said first record;
    each of said first and second records received at said database comprise at least two of the same said more than one parameters;
    determining by a computer when there is a match between at least two of said parameters of said second record of said first financial transaction received at said database and the same parameters of said first record of said financial transaction stored in said database, and wherein any party to said payment clearing process is capable of verifying said parameters at each point along said financial transaction payment clearing process;
    sending a notification to said payee bank participant with authorization to process said electronic financial transaction when said parameters match; and
    sending a notification to said payee bank participant to not process said electronic financial transaction when said parameters do not match.

The Federal Reserve Banks filed petitions for CBM review, challenging all 26 claims of the '640 patent and all 20 claims of the '840 patent. Bozeman Financial filed a fulsome response to the Federal Reserve Banks' arguments in relation to the '840 patent, but sought to incorporate those rejoinders by reference in relation to the '640 patent rather than making the arguments independently. The Patent Trial and Appeal Board rejected that attempted incorporation and found all of the claims of each patent invalid as drawn to ineligible subject matter under 35 U.S.C. § 101. The Board also found 22 of the 26 claims of the '640 patent invalid under § 112.

Bozeman Financial appealed the Board's decisions to the U.S. Court of Appeals for the Federal Circuit. In doing so, it raised only the substantive grounds for the Board's subject matter eligibility decisions; it did not raise the Federal Reserve Banks' personalty. Instead, after the Return Mail decision was issued, Bozeman Financial filed a supplemental brief raising the argument that the Federal Reserve Banks are not "persons" under the AIA, and therefore the CBM reviews were void ab initio. In addition to disputing the merits of Bozeman Financial's argument, the Federal Reserve Banks argued that Bozeman Financial waived the issue by not raising it below or in its opening brief.

Judge Moore, writing for the Federal Circuit, started from the proposition that a federal appellate court generally does not consider any issue not decided below. Nor does it generally consider arguments that are not raised in an appellant's (or cross-appellant's) opening brief. There are, however, exceptional circumstances in which an appellate court will consider issues nonetheless, and the Federal Circuit found that this was one of those circumstances.

The Federal Reserve Banks have some characteristics that would suggest that they are part of the government (and therefore not empowered to bring post-issuance proceedings) and some that would suggest otherwise. They were established by statute (in this case, 12 U.S.C. § 221 et seq.), implement the monetary and fiscal policies of the United States, and transfer profits to the United States Treasury. However, the enabling statute establishes them each as a "body corporate," they have a board of directors, and the board enacts bylaws and governs the business of each bank. They are therefore not directly supervised by government officials. Most importantly, the Federal Reserve Banks can sue or be sued in "any court of law or equity."

It is that last characteristic, especially potential liability in any court, that was most influential in determining that the Federal Reserve Banks are "persons" under the AIA. In Return Mail, one of the bases for the holding that the U.S. Postal Service was the government was that it could only be sued in the U.S. Court of Claims for a taking if it were accused of patent infringement. But with one exception -- in which the Federal Circuit expressly declined to determine whether the Federal Reserve Banks were considered government agencies -- patent infringement proceedings against them did not need to be brought in the Court of Claims under 28 U.S.C. § 1498(a).[1] Thus, the Federal Circuit found that the Federal Reserve Banks were not part of the government for purposes of the AIA, and could properly bring CBM proceedings.

From there, the Federal Circuit addressed the merits of the case. Because Bozeman Financial had not challenged below the merits of the § 112 invalidation of 22 claims of the '640 patent, it could not do so now. Furthermore, because it did not raise any separate arguments with regard to the '640 patent below, it could not do so now. Thus, the four remaining claims of the '640 patent rose or fell with the claims of the '840 patent. In the end, they fell.

The Court applied the Alice test and, in the first step, found that the Board had correctly found the claims were directed to the abstract idea of "collecting and analyzing information for financial transaction fraud or error detection." Essentially, the claims of the '840 patent call for the review and verification of documents to reduce transactional fraud. The Federal Circuit has repeatedly found such claims to be directed to abstract ideas. That is true even though the claims involve physical steps; prior cases have held that physical steps relating to processing checks did not transform an abstract idea into patent-eligible subject matter.

Having found the claims directed to an abstract idea, the Court proceeded to the second step of the Alice test. Even the specification of the '840 patent indicated that methods for preventing check fraud and verifying financial transactions were well known. Bozeman Financial argued that the ordered combination of the elements in the claims was a specific implementation of the invention that was not itself routine or conventional, but failed to provide any evidence that was so. Bozeman Financial also argued that the claims met the machine-or-transformation test of Alice's step two, but that alone would not be sufficient and the Federal Circuit rejected the argument in any event. Thus, all of the claims were found to lack patent-eligible subject matter.

The Bozeman Financial case adds little to Alice jurisprudence, but does help clarify where the line between "governmental" and "non-governmental" entities lies with regard to personalty under the AIA. The Federal Circuit has made it clear that even entities with some indicia of being the federal government can bring post-issuance proceedings, so long as they themselves can be sued for patent infringement in federal court. There may be some exceptions -- entities that can be sued in court but are closely enough tied to the federal government that they cannot bring petitions or those that cannot be haled into court but lack such strong ties -- but for now, the line appears to be drawn between parties subject to suits for patent infringement under 35 U.S.C. § 271 and those subject only for takings under 28 U.S.C. § 1498(a).

[1] See Software Design Corp. v. Fed. Reserve Bank of St. Louis, 583 F.3d 1371, 1379 (Fed. Cir. 2009), distinguished at Slip Op., p. 6-7 n. 3.

Bozeman Financial LLC v. Federal Reserve Bank (Fed. Cir. 2020)
Panel: Circuit Judges Lourie, Dyk, and Moore
Opinion by Circuit Judge Moore

Posted at 11:26 PM in Federal Circuit, Patentable Subject Matter, Post-Grant Proceedings | Permalink | Comments (3)

March 22, 2020

Facebook, Inc. v. Windy City Innovations, LLC (Fed. Cir. 2020)

By Joshua Rich --

It's often said that hard cases make bad law. And that is what had happened here: faced with an unreasonable number of potentially asserted claims in litigation, and a Plaintiff not required to identify which of those claims it would actually assert within the filing limit (one-year) between being served with a complaint and filing to initiate an inter partes review (IPR) proceeding, Facebook played the novel gambit of trying to join its own IPR to attack the claims actually asserted against it. At the Patent Trial and Appeal Board, it actually worked (with a little assistance from the USPTO Director). But the Federal Circuit held otherwise, finding that joinder was only permitted for other parties who were seeking review of the same issues, not for the same party seeking to change the scope of the review. Thus, it vacated the PTAB's decision on the late-added claims, despite otherwise affirming the PTAB's decision on the merits of the claims.

The dispute between Facebook and Windy City began on June 2, 2015, when Windy City sued Facebook for infringement of four patents in the U.S. District Court for the Western District of North Carolina. Those four patents, U.S. Patent Nos. 8,458,245; 8,694,657; 8,473,552; and 8,407,356, have 58, 671(!), 64, and 37 claims, respectively. The Complaint did not identify which of those 830 claims Facebook allegedly infringed. Facebook was served with the Complaint the day after it was filed, and moved to dismiss it on July 24, 2015, arguing that the Complaint was deficient because it did not identify the allegedly infringed claims. Facebook then filed a motion to transfer the case to the Northern District of California on August 25, 2015.

The North Carolina District Court did not take action on either motion for over six months. Then, on March 16, 2016, over ten months after Facebook had been served, that North Carolina District Court transferred the case to the U.S. District Court for the Northern District of California without ruling on the motion to dismiss. The Northern District judge didn't rule on the motion either, but entered a scheduling order on April 6, 2016 that included a case management conference for July 7, 2016. Under the Northern District's Patent Local Rules, Windy City wouldn't have to identify its asserted claims until two weeks after that conference, on July 21, 2016. Cognizant that the deadline for filing petitions for inter partes review -- one year after service of the complaint[i] -- was more than a month earlier than that and was also quickly approaching, Facebook moved for an order requiring Windy City to identify no more than 40 asserted claims by May 16, 2016. The Northern District denied that motion.

On June 3, 2016, the very last day on which it could timely file IPR petitions, Facebook filed petitions challenging the validity of some of the claims of each of the four asserted patents. The Patent Trial and Appeal Board instituted review of all but two of the challenged claims,[ii] on all the obviousness grounds in the petitions. But Facebook's foresight was not perfect; when Windy City ultimately identified its asserted claims on October 19, 2016, there were a number of claims in the '245 and '657 patents that hadn't been challenged in the IPR petitions. With the statutory deadline for filing petitions to challenge those claims long past, Facebook tried to get the newly identified claims in through a procedural back door. It filed additional petitions on those claims, along with motions for joinder with the earlier-filed petitions.

The provisions of the America Invents Act governing joinder and consolidation in IPRs, 35 U.S.C. § 315(c) & (d), provide in relevant part:

(c) Joinder.—
If the Director institutes an inter partes review, the Director, in his or her discretion, may join as a party to that inter partes review any person who properly files a petition under section 311 that the Director, after receiving a preliminary response under section 313 or the expiration of the time for filing such a response, determines warrants the institution of an inter partes review under section 314.

(d) Multiple Proceedings.—
Notwithstanding sections 135(a), 251, and 252, and chapter 30, during the pendency of an inter partes review, if another proceeding or matter involving the patent is before the Office, the Director may determine the manner in which the inter partes review or other proceeding or matter may proceed, including providing for stay, transfer, consolidation, or termination of any such matter or proceeding.

Over Windy City's objection, the PTAB granted the motions for joinder, reasoning that the newly-challenged claims, although not identical, involve "substance . . . very similar such that the addition of [the new] claims . . . is not likely to affect the scope of the trial significantly." The Board noted that the addition of the new claims would not significantly disrupt the schedule, briefing, or discovery, and that Facebook did not unduly delay challenging those claims. Indeed, the Board indicated that under the circumstances here, Facebook could not have reasonably determined which claims were asserted against it by the expiration of the one-year deadline.

This joinder was not without controversy, however. Two of the Administrative Patent Judges on the panels granting joinder concurred in the decision to express "concerns with permitting a party to, essentially, join to itself." They did not themselves believe that "§ 315(c), when properly interpreted, [would] authorize same-party joinder because a party cannot be joined to a proceeding 'as a party' if it already is a party to that proceeding." However, in light of the USPTO Director's repeated espousal for allowing such joinder -- including in a brief filed as an intervenor in these proceedings -- the concurring APJs agreed to follow their boss's interpretation despite their disagreement.

The IPRs then proceeded to final written decisions, in which the PTAB found Facebook had shown some claims of each of the patents invalid as obvious, but had failed to do so for certain other claims of each of the patents. Both parties appealed: Facebook on the claims found not invalid, and Windy City on both the question of same-party joinder and on the claims found invalid.

The Federal Circuit took up the issue of same-party joinder first. Both sides argued that § 315(c) is unambiguous,[iii] but they reached opposing conclusions as to what it meant. Facebook asserted that it permits same-party joinder (including to raise new claims); Windy City asserted that it does not allow same-party joinder or the inclusion of new issues upon joinder. Ultimately, the Federal Circuit determined that Windy City's position was correct: not only is the statute unambiguous, it prohibits both same-party joinder and the inclusion of new issues upon joinder.

The Federal Circuit's analysis started, as it must, with the language of the statute. The time-bar provision, § 315(b), was clearly the impetus for the attempted joinder. However, that section expressly indicates that "[t]he time limitation set forth in the preceding sentence shall not apply to a request for joinder under subsection (c)." The joinder provision in subsection (c) then indicates that the Director has the discretion in an instituted IPR to "join as a party to that inter partes review any person who properly files a petition under section 311 . . ." For the Federal Circuit, the critical word in that provision is a "party." That is, the joinder provision clearly relates to adding new persons to a proceeding, not new questions or issues. In this case, a petitioner is already a party to an IPR and therefore logically cannot be joined.

The Federal Circuit noted that the PTAB appeared not to be viewing the joinder provision in that manner, and instead was viewing the provision in terms of joining later proceedings to earlier proceedings. The Federal Circuit rejected that understanding under the plain language of the statute. But it also indicated that the distinction between the two views was analogous to the distinction between Rules 19 and 20 of the Federal Rules of Civil Procedure and Rule 42. The former two rules clearly relate to parties rather than issues, whereas Rule 42 relates to issues rather than parties. Furthermore, there is another provision, § 315(d), relating to consolidation of proceedings with potentially different issues rather than joinder. Thus, the structure of the statute would not suggest that different proceedings could be "joined."

The Federal Circuit recognized that the Board's Precedential Opinion Panel had previously analyzed this issue in Proppant Express Investments, LLC v. Oren Technologies, LLC, No. IPR2018-00914, Paper 38 (P.T.A.B. Mar. 13, 2019), and came to the opposite conclusion. But the Federal Circuit reviews the statutory construction de novo, and potentially defers to the Board only if it finds ambiguity in the statute. Since it did not find any ambiguity, the Federal Circuit rejected any deference to the POP decision.

The Federal Circuit also relied on the fact that Facebook had changed the scope of the proceedings by adding new claims. As the Supreme Court had found in the SAS case, "Congress chose to structure a process in which it's the petitioner, not the Director, who gets to define the contours of the proceeding."[iv] That meant that the original petition created the scope of the IPR proceeding, which could not be altered by a second petition (even one by the same petitioner). Finally, the Federal Circuit considered the legislative history of the statute and found that it supported its interpretation.

Having resolved that the statute did not permit same-party joinder, the Federal Circuit vacated the PTAB's findings of invalidity of any claims not included in the original petitions. It then proceeded to consider whether the PTAB's decision on the other claims was supported by substantial evidence. It found that the PTAB's analysis was sufficiently clear and supported to affirm.[v]

In addition to the panel opinion, the Federal Circuit included additional views to address the POP's decision in Proppant, which issued after primary briefing in the appeal, and whether deference would be appropriate. Facebook had earlier suggested the Federal Circuit should defer under Chevron, but the Federal Circuit had never done so with a nonprecedential Board decision (and expressly refused to do so here). But Proppant was precedential, which caused the Federal Circuit to look more closely. Proppant suggested that the Director had discretion to allow same-party joinder, but would only exercise that discretion where fairness requires it and would alleviate unfairness to a party.

The Federal Circuit again rejected that deference for a number of reasons. First, it found the statute unambiguous, which preempts Chevron deference. Second, although the AIA gave the Director rulemaking authority in relation to the procedures for joinder in IPRs (and therefore deference would be most appropriate), it found that was different from interpreting the statute itself. The panel found that there was no deference indicated for statutory interpretation, just filling in the interstices of the statute. Finally, the Federal Circuit found that there were other ways to alleviate the potential unfairness to parties (including patent local rules, which normally would call for early disclosure of asserted claims) that would cause less disruption to the statutory scheme. Thus, it rejected the Proppant decision.

In rejecting same-party joinder, or joinder that would change the scope of an IPR, the Federal Circuit brought the process into harmony with joinder rules in Federal litigation. And while Facebook was not accorded the quick, less expensive justice that IPRs are intended to provide, it is unlikely that its situation will recur. Had the Federal Circuit found otherwise, it might have created a back door that would allow procrastinating defendants more time to determine whether they wanted to challenge all of the claims asserted in litigation.

Facebook, Inc. v. Windy City Innovations, LLC (Fed. Cir. 2020)
Panel: Chief Judge Prost and Circuit Judges Plager and O'Malley
Opinion by Chief Judge Prost; additional views by Chief Judge Prost and Circuit Judges Plager and O'Malley

[i] See 315 U.S.C. § 315(b).

[ii] The IPR institution decisions were made prior to the Supreme Court’s resolution of SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348 (2018).

[iii] As discussed below, Facebook also argued that the Federal Circuit should defer under Chevron to the USPTO’s interpretation of the statute, which would only be appropriate if the statute were ambiguous. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[iv] SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018).

[v] The PTAB had construed the claims according to the broadest reasonable interpretation, the standard that was in place at that time.

Posted at 11:27 PM in Federal Circuit, Post-Grant Proceedings | Permalink | Comments (0)

March 20, 2020

Naples Roundtable Requests PTAB to Make Decisions Precedential

The Naples Roundtable, a 501(c)(3) non-profit organization whose primary mission is to explore ways to improve and strengthen the U.S. patent system, will on Monday, March 23rd file a Request with the U.S. Patent and Trademark Office, to designate Ex parte Olson (Appeal 2017-006489), and Ex parte Fautz (Appeal 2019-000106) as precedential. Both were designated "informative" on July 21, 2019. In each case, the Patent Trial and Appeal Board reversed an Examiner's decision rejecting the claims in each application as being directed to patent-ineligible subject matter under 35 U.S.C. § 101 under the Supreme Court's Mayo/Alice jurisprudence. The basis for the Board's decision reversing the Examiner in each case was the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter "Guidance").

The Olson claims were directed to a catheter navigation system involving mathematical equations used in the claimed system and methods that reduced registration errors in a 3D imaging system resulting in improved catheter placement in a patient. The Board found error in the Examiner's application of Revised Step 2A, 2nd Prong, wherein the claims recited additional limitations that applied the results of the mathematical formulae to achieve the claimed result, i.e., reduce errors in catheter placement by accounting for patient-specific non-linearities and inhomogeneities in catheter navigation, again finding similarities to how the Arrhenius equation was used in Diamond v. Diehr.

The Fautz claims were directed to magnetic resonance tomography (MRT) and methods for performing MRT using the apparatus and recited three mathematical formulae and four calculations that use those formulae. As in Olson, the Board held that the Examiner improperly applied Revised Step 2A, 2nd Prong.

And in each case, the rationale for the Board's decision avoided having to consider Revised Step 2B, regarding whether the claim recited that ineluctable "something more" recited in the Revised Guidance.

The letter is signed by Gary Griswold, Naples Roundtable President; Kevin E. Noonan, Patent Docs author and MBHB Partner: Andrew Baluch, Naples Roundtable Amicus Committee Chair; and Teresa Summers, Naples Roundtable Treasurer.

Posted at 11:55 PM in Patent Trial and Appeal Board, Patentable Subject Matter, Post-Grant Proceedings | Permalink | Comments (0)

January 19, 2020

BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc. (Fed. Cir. 2020)

By Donald Zuhn –-

Last week, the Federal Circuit issued a per curiam Order in BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., denying a petition for a panel rehearing or rehearing en banc filed by Appellant BioDelivery Sciences International, Inc. Judge Newman dissented from the denial of the petition for rehearing en banc.

The dispute between the parties arose when BioDelivery sought inter partes review of claims 1, 4, 6–9, 11, 12, 26, 27, 32, 38, 44, 51, 58, 65, 72, 82, 109, and 125–127 of U.S. Patent No. 8,765,167, citing seven prior art grounds of anticipation or obviousness. The U.S. Patent and Trademark Office Patent Trial and Appeal Board instituted the IPR on most, but not all, of the challenged claims, and on one of the grounds. The PTAB ultimately issued a Final Written Decision finding claims 1, 4, 11, 12, 26, 27, 44, 51, 58, 65, 72, 82, and 125–127 of the '167 patent to be patentable.

BioDelivery appealed to the Federal Circuit, which received briefing and argument before the Supreme Court issued its decision in SAS Institute Inc. v. Iancu. On BioDelivery's motion, the Federal Circuit directed the PTAB "to implement the Court's decision in SAS." In response, the PTAB "modif[ied its] Decision to Institute and instead deny the Petition in its entirety, thereby terminating [the] proceeding," and in particular, "ORDERED that Petitioner's request for inter partes review of claims 1, 4, 6–9, 11, 12, 26, 27, 32, 38, 44, 51, 58, 65, 72, 82, 125–127 of the '167 patent is denied and no inter partes review is instituted."

Judge Newman, dissenting from the denial of the petition for rehearing en banc, stated that: "I write because of the significance of the balance of agency and judicial authority, and the rules of procedural law in the administrative state." Noting that the Supreme Court in SAS held that 35 U.S.C. § 318(a) requires that in an inter partes review the PTAB must decide all of the claims and grounds challenged in the petition, Judge Newman indicated that "the PTAB had not met this requirement for these cases [the appeal consolidated three separate PTAB decisions]." In particular, Judge Newman noted that "[t]he PTAB did not comply with the Remand Order, stating that it would be inefficient and expensive to include the additional claims and grounds," with the PTAB explaining in its Decision on Remand that "[b]ecause the overwhelming majority of unpatentability grounds presented by Petitioner fail to meet the standard for institution of inter partes review, we find that instituting trial as to those grounds at this time is neither in the interest of the efficient administration of the Office, nor in the interest of securing an inexpensive resolution of this proceeding." In her dissent, Judge Newman writes that:

[M]y colleagues hold that the PTAB is not required to comply with the court's Remand Order, and further hold that this non-compliance is not reviewable. This action raises critical issues of agency authority, judicial responsibility, and the constitutional plan.

Judge Newman declares that "[m]y concern is with the PTAB's position that it need not follow the court's Remand Order, for reasons of efficiency and expense," adding that "[s]uch agency authority cannot be discerned in the America Invents Act, and contravenes decades of constitutional jurisprudence." Citing Banks v. United States, 741 F.3d 1268, 1276 (Fed. Cir. 2014) (quoting Briggs v. Pa. R. Co., 334 U.S. 304, 306 (1948)), Judge Newman notes that agency action is bound by the mandate rule, which:

[D]ictates that 'an inferior court has no power or authority to deviate from the mandate issued by an appellate court.' Once a question has been considered and decided by an appellate court, the issue may not be reconsidered at any subsequent stage of the litigation, save on appeal.

Judge Newman also observes that "[t]he legislative record contains no contemplation of a PTAB procedure whereby, after full PTAB trial and decision and appeal to the Federal Circuit, the PTAB could annul the appeal and remove the entire action and decisions and procedure from history, insulated from review." As a result, Judge Newman found the PTAB's action in this case to be "seriously flawed." According to Judge Newman, "[t]he PTAB's refusal to comply with our Remand Order to implement the Supreme Court's ruling warrants en banc attention," and she therefore dissented from the denial of the petition for rehearing en banc.

BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc. (Fed. Cir. 2020)
Per curiam
Before Chief Judge Prost and Circuit Judges Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, and Hughes; dissenting opinion by Circuit Judge Newman

Posted at 11:58 PM in Federal Circuit, Post-Grant Proceedings | Permalink | Comments (1)

January 15, 2020

Genentech, Inc. v. Hospira, Inc. (Fed. Cir. 2020)

By Kevin E. Noonan --

Last week, the Federal Circuit affirmed invalidation of claims to methods for reducing Protein A leaching in affinity column chromatographic methods important inter alia in purifying monoclonal antibodies, in Genentech, Inc. v. Hospira, Inc. In doing so, the panel majority (over a dissent by Judge Newman) illustrated anew the importance of the deference the U.S. Patent and Trademark Office (and particularly the Patent Trial and Appeal Board) is due under the Administrative Procedures Act, and how that deference can be outcome determinative under the right circumstances.

The case arose before the PTAB in an inter partes review (IPR) of U.S. Patent No. 7,807,799, which claimed methods for purifying antibodies comprising a C_H2/C_H3 region using Protein A affinity chromatography. The claimed methods are directed to an improvement wherein the amount of Protein A contaminant in the antibody eluate is minimized (substantially to zero). The opinion characterized the claimed method as a "standard purification technique," relying on high affinity, reversible binding to C_H2/C_H3 regions, which methods were capable of "reducing leaching of protein A . . . by reducing [the] temperature" of the "composition that is subjected to protein A affinity chromatography." The inventors found that leaching can be minimized by performing chromatography at temperatures between 10-18°C (the specification also disclosing a broader range of 3-20°C). Claim 1 of the '799 patent is representative:

A method of purifying a protein which comprises CH2/CH3 region, comprising subjecting a composition comprising said protein to protein A affinity chromatography at a temperature in the range from about 10°C to about 18°C.

The primary references asserted by Hospira in its IPR was International Publication No. WO 95/22389 and a scientific reference contributed by van Sommeren and colleagues to a treatise entitled Effects of Temperature, Flow Rate and Composition of Binding Buffer on Adsorption of Mouse Monoclonal IgG1 Antibodies to Protein A Sepharose 4 Fast Flow, 22 PREPARATIVE BIOCHEMISTRY 135 (1992), as well as other secondary references that were applied in combination with the '389 PCT publication for the Board's obviousness determinations. The '389 PCT publication disclosed Protein A purification of antibodies performed at room temperature, defined as 18-25°C, which overlapped with the '799's temperature range of from about 10°C to about 18°C. The Board held all claims in IPR (1-3 and 5-11) to be anticipated by the '389 PCT publication or obvious in light of the '389 PCT publication or the van Sommeren reference as primary reference, in combination with other secondary references. Genentech appealed and also challenged the constitutionality of applying IPRs retroactively in view of the '799 patents priority date; the Federal government intervened to address this issue on appeal.

The Federal Circuit affirmed, in an opinion by Judge Chen joined by Chief Judge Prost; Judge Newman dissented. Regarding the Board's anticipation decision, the Federal Circuit relied on the overlap of the temperature ranges, on the basis that the method disclosed in the '389 PCT publication was directed to purifying antibodies comprising the CH2/CH3 region and included a Protein A purification step performed at room temperature, defined in the specification as the range of 18-25°C. The Federal Circuit's opinion states that "[a] prior art reference that discloses an overlapping but different range than the claimed range can be anticipatory, even where the prior art range only partially or slightly overlaps with the claimed range," citing Ineos USA LLC v. Berry Plastics Corp., 783 F.3d 865, 870–71 (Fed. Cir. 2015). The question that a court must answer, according to the opinion, is "whether the patentee has established that the claimed range is critical to the operability of the claimed invention," citing Ineos and E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996, 1008 (Fed. Cir. 2018). The Board found that Genentech had not carried this burden and (curiously, perhaps) Genentech did not challenge this finding on appeal.

The Board also found that the '389 PCT publication taught that Protein A column chromatography was performed throughout at room temperature (18-25°C, i.e., the overlapping temperature range). Genentech attempted to challenge this interpretation on the ground that "room temperature" as disclosed in the '389 PCT publication was precisely that, the temperature of the room in which the chromatography was performed and not the temperature of the components, buffers, etc. used in the purification. Genentech based this argument in part on the temperature of the source material to be subjected to chromatography (i.e., antibody preparations from cells cultured at 37°C) in the absence of instructions in the '389 PCT publication to cool this material to "room temperature" and relied on testimony from its expert. Hospira's expert, on the contrary, argued that those of skill in the art would perform chromatography at "ambient" (room) temperature. The Federal Circuit majority held that "substantial evidence supports the Board's finding that the HCCF subject to protein A affinity chromatography in WO '389 is within the claimed temperature range of claim 1." The majority identified portions of Genentech's expert's testimony that it disagreed with (correctly, in the majority's view) and held that "to the extent the experts disagreed with one another, the Board reasonably chose to credit the testimony of [Hospira's expert] over the testimony of [Genentech's expert], another instance where the deference the Court is mandated to give fact questions to the Board under Dickinson v. Zurko was dispositive. The Federal Circuit majority also rejected Genentech's argument that the Board's decision was contrary to the Court's precedent (thus converting the issue to a question on law) and affirmed the Board's determination that Genentech's claims were invalid for anticipation by the disclosure in the '389 PCT publication.

Turning to the Board's decision that the claims were also obvious over the combination of the disclosure of the '389 PCT publication in combination with a variety of other prior art references, the panel majority relied on their precedent that "[i]f the relevant comparison between a disputed claim limitation and the prior art pertains to a range of overlap-ping values, 'we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness,'" citing In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). This has the effect of raising a presumption of obviousness, according to the opinion, thus shifting the burden on the patentee to rebut the presumption (which the Board held Genentech did not do and the panel majority affirmed). Genentech neither showed that the temperature range was critical to the invention nor that the prior art did not recognize temperature as being "result-effective" (two ways to achieve the required rebuttal). This latter stratagem was ineffective in the Board's view because the prior art understood Protein A leaching to be the result of proteolysis, and that proteolysis was affected by temperature. Moreover, according to the Court, "[t]he Board reasonably found that a skilled artisan would have been motivated to optimize the temperature given the teachings of the prior art, and that given the ease with which temperature can be varied, finding an optimal temperature range would have been nothing more than routine experimentation." The panel majority rejected Genentech's argument that the purported desire to reduce Protein A leaching was relevant only in large-scale, industrial applications of the technique, not at least because Genentech's claim was not limited to these circumstances.

Finally, the Board held that the objective indicia of nonobviousness did not change their conclusion that Genentech's claims were obvious, and the panel majority affirmed this determination.

The majority's opinion closes with the Court's rejection of Genentech's challenge that inter partes review are an unconstitutional violation of the Fifth Amendment (for reasons substantially identical to the Court's earlier opinion in Celgene Corp. v. Peter, 931 F.3d 1342, 1356–63 (Fed. Cir. 2019)), nor the Seventh Amendment nor Article III.

Judge Newman dissented, on the basis inter alia that the invention had actually solved a real world problem and that the majority's affirmance ignored the value the invention brought to the art. "The court presents a hindsight determination that this apparently simple solution to a difficult problem is anticipated and obvious, although it was not known or obvious to the scientists who were attempting to solve the problem of leaching contamination, and the experts for both sides agreed that the solution presented in the '799 patent was new to them," Judge Newman writes. She sees the complexities involved in arriving at this solution, and the failure in the art to disclose the solution rebuts, for the Judge the Board's invalidation on anticipation and obviousness grounds. On the merits, Judge Newman discounts the overlap at 18°C as supporting anticipation, because her understanding of the law would require the temperature range disclosed in the '389 PCT publication (18-25°C) to be the same as the claimed temperature range (10-18°C). And Judge Newman rejects the "optimization" basis for the Board's obviousness determination (and the majority's affirmance), stating that:

[T]he question is not whether it would have been easy to cool the material to the 10°C - 18°C range; the question is whether it would have been obvious to do so. Contrary to the Board's and the court's view, this is not a matter of optimizing a known procedure to obtain a known result; for it was not known that cooling the material for chromatography would avoid contamination of the purified protein with leached protein A.

Genentech, Inc. v. Hospira, Inc. (Fed. Cir. 2020)
Panel: Chief Judge Prost and Circuit Judges Newman and Chen
Opinion by Circuit Judge Chen; dissenting opinion by Circuit Judge Newman

Posted at 11:28 PM in Federal Circuit, Novelty, Obviousness, Post-Grant Proceedings | Permalink | Comments (0)

January 12, 2020

Becon Medical, Ltd. v. Bartlett (E.D. Pa. 2019)

By Donald Zuhn –-

Last month, in Becon Medical, Ltd. v. Bartlett, Senior District Judge Jan E. Dubois of the U.S. District Court for the Eastern District of Pennsylvania denied a motion to stay filed by Defendants Scott P. Bartlett, M.D. and TalexMedical, LLC ("TalexMedical"). In denying TalexMedical's motion, the District Court concluded that all three factors for determining whether to stay an action pending inter partes review weighed against granting a stay.

Plaintiffs Becon Medical, Ltd. and Henry Stephenson Byrd, M.D. ("Becon") initiated the dispute between the parties by filing suit against TalexMedical for infringement of U.S. Patent Nos. 8,167,942 and 8,852,277, contending that TalexMedical infringed the patents by making and selling its non-surgical infant ear correction device, InfantEar (Becon makes and sells the EarWell device). TalexMedical was served with Becon's complaint on October 10, 2018, and filed its motion to stay approximately three weeks before it requested IPR on October 9, 2019. By the time TalexMedical requested IPR, the parties had completed fact discovery, the Court had conducted a Markman hearing, and the Court had construed the disputed claim terms.

The District Court noted that in determining whether to stay an action pending an IPR, courts consider three factors: (1) whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; (2) whether a stay will simplify the issues in question and trial of the case; and (3) whether discovery is complete and whether a trial date has been set. With respect to the first factor, the District Court noted that courts look to four sub-factors: (1) the timing of the request for IPR; (2) the timing of the request for stay; (3) the status of the IPR proceedings; and (4) the relationship of the parties.

In assessing the sub-factors to be considered with respect to the first factor, the District Court indicated that TalexMedical waited until "the last possible day before the statutory deadline" to request IPR, and that "[d]efendants offer no reason for filing their IPR petitions just before the deadline." The Court also noted that Becon filed its Initial Infringement Contentions approximately seven months before TalexMedical filed for IPR, and that "defendants do not explain the near seven-month delay in filing for IPR after they learned of plaintiffs' infringement contentions." In view of the above, the Court found "that the timing of defendants' request for IPR suggests that defendants are seeking an inappropriate tactical advantage," and determined that this sub-factor (the timing of the request for IPR) weighed against granting a stay.

With respect to the second sub-factor (the timing of the request for stay), the District Court determined that because TalexMedical filed its motion to stay approximately three weeks before it filed for IPR, this sub-factor weighed in favor of granting a stay. However, because the PTAB had not yet instituted review, and the IPR proceedings could extend into early 2021 if review was instituted, the Court determined that the third sub-factor (the status of the IPR proceedings) weighed against granting a stay.

Moving to the fourth and final sub-factor (the relationship of the parties), the District Court began by noting that courts are reluctant to stay proceedings where parties are direct competitors because "[w]here parties are direct competitors, a patent infringer can take market share and build brand loyalty while the case is pending, and these injuries may not be recoverable in damages or later injunctive relief" (citing Zillow, Inc. v. Trulia, Inc., No. C12-1549JLR, 2013 WL 5530573, at *6 (W.D. Wash. Oct. 7, 2013)). In this case, the Court indicated that the parties are direct competitors since they both make non-surgical infant ear correction devices that are marketed and sold to physicians, and therefore, that Becon would likely be unduly prejudiced by a stay. The Court also noted that Becon had presented strong evidence of willful infringement, and while acknowledging that willful infringement is not traditionally considered by courts in determining whether to grant a stay (and despite noting that Becon did not move for a preliminary injunction), the Court found that the evidence of willful infringement "is relevant to the exercise of its discretion." The Court therefore concluded that the fourth sub-factor weighed against a stay, and because three of the four sub-factors weighed against granting a stay, determined that the first factor weighed against granting a stay.

Turning to the second factor (whether a stay will simplify the issues in question and trial of the case), the District Court noted that courts in the Third Circuit have generally held that this factor weighs against a stay when the PTAB has not yet decided whether to institute IPR proceedings. Because the PTAB had not yet decided whether to institute IPR proceedings, the Court concluded that the second factor weighed against granting a stay.

Finally, with respect to the third factor (whether discovery is complete and whether a trial date has been set), the District Court pointed out that while expert discovery had not yet been completed and a trial date had not yet been set, fact discovery had been completed, the Court had conducted a Markman hearing, and the Court had construed the disputed claim terms. Thus, the District Court determined that both the Court and the parties had already expended significant resources, which weighed against granting a stay.

Having concluded that all three factors weighed against granting a stay, the District Court therefore denied Defendants' Motion to Stay the litigation pending IPR.

Becon Medical, Ltd. v. Bartlett (E.D. Pa. 2019)
Memorandum by Senior District Judge Dubois

Posted at 10:59 PM in District Court, Post-Grant Proceedings | Permalink | Comments (0)

January 05, 2020

January 02, 2020

October 31, 2019

Federal Circuit Holds APJs Are Principal Officers

By Kevin E. Noonan and James L. Lovsin --

Today in Arthrex, Inc. v. Smith & Nephew, Inc., a three-judge panel of the Federal Circuit held that the way the U.S. Patent and Trademark Office has appointed administrative patent judges at the Patent Trial and Appeal Board violates the Appointments Clause of the Constitution (Art. II, sec. 2, cl. 2), in an opinion by Judge Moore, joined by Judges Reyna and Chen. According to the opinion, because APJs are principal officers they must be nominated by the President and confirmed by the Senate. Although the opinion provides a remedy (having Congress abrogate the portion of the Patent Act restricting removal of the APJs), the legitimacy of the PTAB to render decisions in the meantime has been abrogated by the Court, and the effect on (1) pending PTAB proceedings, (2) pending appeals of PTAB decisions at the Federal Circuit and the Supreme Court, and (3) the thousands of judgments by the PTAB since passage of the Leary-Smith America Invents Act is uncertain. District court litigation stayed in favor of a PTAB proceeding may also be impacted.

This decision will be the subject of a future post.

Posted at 10:08 PM in Federal Circuit, Patent Trial and Appeal Board, Post-Grant Proceedings | Permalink | Comments (1)

October 28, 2019

Quest USA Corp. v. PopSockets LLC (PTAB 2019)

Functional Language in Device Claim Ignored for Patentability Purposes

By Joseph Herndon --

The U.S. Patent and Trademark Office Patent Trial and Appeal Board recently issued a decision indicating that certain claims of a patent directed to the popular PopSockets are invalid. In Quest USA Corp. (Petitioner) v. PopSockets LLC (Patent Owner) (Case IPR2018-00497), the PTAB determined that Quest showed, by a preponderance of the evidence, that claims 9–11, 16, and 17 ("challenged claims") of U.S. Patent No. 8,560,031 are unpatentable.

Quest filed a Petition for inter partes review of claims 9–11, 16, and 17 of the '031 patent based on the five different grounds. Only one is discussed below—namely, claims 9–11, 16, and 17 as being anticipated by UK Patent Application GB 2 316 263 (Grinfas).

The '031 Patent

The '031 patent, entitled "Extending Socket for Portable Media Player," was filed on February 23, 2012. The '031 patent specification describes extending sockets for attaching to the back of a portable media player or media player case.

Figure 3A illustrates a preferred embodiment of the socket in an accordion shape in its expanded configuration.

Of the challenged claims, claims 9 and 16 are independent, and claim 9 is representative and reproduced below.

9. A socket for attaching to a portable media player or to a portable media player case, comprising:
    a securing element for attaching the socket to the back of the portable media player or portable media player case; and
    an accordion forming a tapered shape connected to the securing element, the accordion capable of extending outward generally along its [axis] from the portable media player and retracting back toward the portable media player by collapsing generally along its axis; and
    a foot disposed at the distal end of the accordion.

Overview of Grinfas

Grinfas relates to a collapsible sound conduit for attaching to a cellular telephone earpiece. Grinfas states that a concern had arisen regarding the safety of users of portable hand-held cellular telephones, namely with regard to radiation emitted by such telephones. To address such concern, Grinfas discloses a collapsible sound conduit placed between the telephone's earpiece and the user's ear, for enabling a user to maintain the telephone at a spaced distance away from the user's head to reduce radiation exposure while nevertheless maintaining an acceptable level of hearing.

Grinfas discloses that the collapsible sound conduit can be "attached to either the telephone or the carrying case," by bonding or fastening.

Figure 2 of Grinfas (shown below), shows an example of the collapsible sound conduit in use. Figure 3 of Grinfas (shown below) shows a cellular telephone 40 and collapsible sound conduit 42, wherein conduit 42 includes adhesive pad 46 for bonding the conduit to earpiece 44 of telephone 40.

Petitioner identified the collapsible sound conduit as the asserted socket for attaching to a portable media player or portable media player case.

Patent Owner disputed Petitioner's assertions that Grinfas discloses "a securing element" and "an accordion," as those terms are used in the claim.

The Board found that with regard to the recitation in claim 9 that the socket comprises "a securing element for attaching the socket to the back of the portable media player or portable media player case" ("securing element limitation"), there is no genuine dispute that Grinfas discloses the recited structure, namely "a securing element." However, the parties disputed whether the remaining language, "for attaching the socket to the back of the portable media player or portable media player case," recites 1) functional language that must be given patentable weight, or 2) an intended use that is not limiting.

As the Patent Owner pointed out, Grinfas describes attaching the collapsible sound conduit to the front of the telephone, whereas claim 9 recites a securing element for attaching the socket to the back of a portable media player.

The Board pointed to a number of Federal Circuit decisions, in which the Court stated that in an apparatus claim, "choosing to define an element functionally, i.e., by what it does, carries with it a risk." This is because it is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable. This finds support from the notion that an apparatus claim covers what a device is, not what a device does. Thus, "[w]here all structural elements of a claim exist in a prior art product, and that prior art product is capable of satisfying all functional or intended use limitations, the claimed invention is nothing more than an unpatentable new use for an old product." Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 654 (Fed. Cir. 2011).

Thus, the Board found that because Grinfas discloses securing structures that are inherently capable of performing the function of attaching the asserted socket to the back of the portable media player, it has supporting disclosure for the limitation "a securing element for attaching the socket to the back of the portable media player or portable media player case."

The Patent Owner argued that the issue is not whether Grinfas' securing structures would adhere the conduit to the back of a phone, but rather was whether Grinfas discloses attaching the conduit to the back of a phone. Therefore, Patent Owner's argument was not about whether Grinfas' securing structures are capable of attaching a conduit to the back of a phone, but rather was about whether Grinfas discloses the function of attaching to the back of a phone. The Patent Owner argued that an expert declaration failed to provide evidence that the claimed function is necessarily present in Grinfas, and that expert testimony, without (additional) evidence is insufficient to establish inherency.

The Board disagreed that the Petitioner failed to establish inherency. In particular, the Board disagreed that the Petitioner is required to show that the claimed function is actually performed or must be performed when the full structure is described.

Thus, despite the cited art failing to describe the full use of the structure, as recited in the claim, and also being directed to a clearly different use altogether, it was found to anticipate the claim because the structure in Grinfas was capable of performing the recited use.

As a result, because Grinfas discloses a securing element inherently capable of being attached to the back of a portable media player, the Board found that Grinfas discloses the securing element limitation. Thus, the Board determined that Petitioner demonstrated, by a preponderance of the evidence, that claim 9 is anticipated by Grinfas.

Panel: Administrative Patent Judges Zado, Kaiser, and Margolies
Final Written Decision by Administrative Patent Judge Zado

Posted at 11:28 PM in Novelty, Patent Trial and Appeal Board, Post-Grant Proceedings | Permalink | Comments (0)

October 23, 2019

USPTO Issues Proposed Rules on Burden of Proof for Motions to Amend in Post-Grant Proceedings

By Joshua Rich --

When post-grant proceedings under the America Invents Act began, the USPTO's Patent Trial and Appeals Board ("PTAB") treated motions to amend in those proceedings like most other motions: the movant, here the patentee, bore the burden of production of evidence and the burden of persuasion on the issue of patentability of the proposed substitute claims. Then, the Federal Circuit's decision in Aqua Products[1] in 2017 made it clear that there was no such rule allocating the burden of persuasion. Since then, the PTAB has required the petitioner in post-grant proceedings to persuade it that the proposed amended claims are not patentable. The USPTO now seeks to codify that standard in its regulations, amending the rule only to allow itself discretion in rare circumstances.

The proposed regulations (37 CFR §§ 42.121 and 42.221) include three basic points. First, the patentee will still bear the burden of persuasion by a preponderance of the evidence on certain procedural points: that there are a reasonable number of substitute claims, that the amendment does not broaden the scope of the claims, that there is written description support for the new claims, and the like. Second, the petitioner will then bear the burden of proof to show by a preponderance of the evidence that the proposed substitute claims would be unpatentable. Third, the PTAB retains discretion to grant or deny any motion to amend in the interests of justice, so long as the reason for its decision is supported by the evidence of record.

The road to the proposed regulations started with the Federal Circuit's Aqua Products case.[2] Although the Court was fractured, Judge O'Malley explained in the lead opinion the points of general agreement:

The only legal conclusions that support and define the judgment of the court are: (1) the PTO has not adopted a rule placing the burden of persuasion with respect to the patentability of amended claims on the patent owner that is entitled to deference; and (2) in the absence of anything that might be entitled deference, the PTO may not place that burden on the patentee.

872 F.3d at 1327. In a separate opinion -- also joined by a majority of the judges -- Judge Reyna noted that the lack of any rule on the burden of persuasion did not extend to the burden of production:

There is no disagreement that the patent owner bears a burden of production in accordance with 35 U.S.C. § 316(d). Indeed, the Patent Office has adopted regulations that address what a patent owner must submit in moving to amend the patent.

Id. at 1341. Thus, Aqua Products found that the patentee had been assigned the burden of production on motions to amend, including with regard to the formalities set forth in the regulations. However, it found the patentee did not bear the ultimate burden of persuasion on patentability.

The PTAB then brought its decisions in line with the Federal Circuit's holdings and placed the burden of persuasion on the petitioner in post-grant proceedings. However, it made it clear that the "Board itself may justify any finding of unpatentability by reference to evidence of record in the proceeding," such as when the petitioner has stopped prosecuting the case due to settlement. See Western Digital Corp. v. SPEX Techs., Inc., Case Nos. IPR2018-00082, -00084 (P.T.A.B. Apr. 25, 201) (Paper 13). The USPTO also sought comments from the public on two questions related to the burden of proof for motions to amend. First, should it engage in formal rulemaking to codify its decision in Western Digital? Second, if the burdens are allocated as set forth in Western Digital, when should the Board itself act to justify unpatentability?

The USPTO received 49 comments, 25 of which provided specific answers to the questions it posed. The vast majority of the specific responses were in favor of rulemaking, and a smaller majority suggested that the rules should mirror the Western Digital decision. Similarly, a substantial majority believed that the PTAB should not be limited to any specific posture of the proceedings in which to exercise discretion on patentability. However, two believed that the PTAB should never be permitted to exercise discretion and three believed that it should only be permitted to do so in certain factual scenarios (such as when the petitioner stops participating).

Thus, the USPTO promulgated the draft rules. In doing so, it suggested that the PTAB will rarely exercise its discretion to find a lack of patentability on its own, most likely when the petitioner stops participating (including due to settlement) or when it does not oppose the motion to amend. Importantly, however, the reasons for refusing an amendment must already appear in the record and be in the interests of justice. On the other hand, even if the patentee fails to make its required showings in its motion to amend, the PTAB can exercise its discretion to allow amendment in the rare situation it believes justice suggests it do so if the evidence needed to permit the amendment is already in the record.

The draft rules are open for comment until December 23, 2019. Given Director Iancu's push to make amendment a viable option in post-grant proceedings, however, it is likely that they will be adopted relatively quickly and in similar form to the draft rules.

[1] Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017) (en banc).

[2] A complete summary of the Aqua Products case can be found at https://www.patentdocs.org/2017/10/aqua-products-inc-v-matal-fed-cir-2017.html

Posted at 11:05 PM in Patent Trial and Appeal Board, Post-Grant Proceedings | Permalink | Comments (0)

October 08, 2019

OSI Pharmaceuticals, LLC v. Apotex Inc. (Fed Cir. 2019)

By Kevin E. Noonan --

Last week, the Federal Circuit overturned an obviousness determination in an inter partes review by the Patent Trial and Appeal Board in OSI Pharmaceuticals LLC v. Apotex Inc. The Court also reaffirmed its holdings in earlier-decided cases that applying the IPR portion of the Leahy-Smith America Invents Act to patents arising from applications filed before enactment of the AIA is not unconstitutional.

The challenged patent, U.S. Patent No. 6,900,221, was listed in the Orange Book for OSI's cancer treatment Tarceva® (erlotinib), an epidermal growth factor receptor (EGFR) inhibitor used in the treatment of non-small cell lung cancer (NSCLC). The opinion explains that NSCLC was the leading cause of cancer deaths in 2001, amounting to greater than one million cases. At that time, chemotherapy was the standard therapy but was limited by the toxicity of most cancer chemotherapeutic agents, which showed little specificity in killing normal as well as cancer cells.

Efforts during the timeframe of the earliest claimed priority date of the '221 patent were directed to EGFR inhibitors, but (importantly for the Court's decision) the opinion notes that "many of these [EGFR inhibitors] failed in clinical trials." One reason for these negative outcomes, according to the opinion, is that "[c]ancer treatment is highly unpredictable" and that while some promising compounds were effective in vitro, such successes were "a poor proxy for how effective that drug actually was in treating cancer in vivo (i.e., in the body)" (the opinion citing several reasons for these results). The opinion also recites the regulatory hurdles prospective drugs much overcome, and that "[a] great majority of therapies for NSCLC failed in clinical trials" (including the 1,631 new drugs for treating NSCLC between 1990 and 2005, and the mere 7 that were approved by the FDA, one of which was OSI's erlotinib).

Before the Patent Trial and Appeal Board, Petitioner challenged claims 44-46 and 53 of the '221 patent for being unpatentable as obvious:

44. A method for the treatment of NSCLC (non small cell lung cancer), pediatric malignancies, cervical and other tumors caused or promoted by human papilloma virus (H[P]V), Barrett's esophagus (pre-malignant syndrome), or neoplastic cutaneous diseases in a mammal comprising administering to said mammal a therapeutically effective amount of a pharmaceutical composition comprised of at least one of N-(3-ethynylphenyl)-6,7-bis(2-methoxyethoxy)-4-quinazolinamine, or pharmaceutically acceptable salts thereof in anhydrous or hydrate forms, and a carrier.

45. The method of claim 44, wherein the treatment further comprises a palliative or neo-adjuvant/adjuvant monotherapy.

46. The method of claim 44, wherein the treatment further comprises blocking epidermal growth factor receptors (EGFR).

53. The method of claim 44 for the treatment of non-small cell lung cancer (NSCLC).

The asserted prior art disclosed "a class of '4-(substituted phenylamino)quinazoline derivatives which are useful in the treatment of hyperproliferative diseases, such as cancers, in mammals" (Schnur); a scientific review article summarizing studies related to cell signaling mechanisms and molecules like EGFR involved therein with regard to malignant tumors (Gibbs); and OSI's 10-K filing with the Security and Exchange Commission. Schnur discloses 105 different compounds including erlotinib (a "preferred" compound) and that this compound could be used as a treatment for cancers of many tissues, including lung (but not specifically NSCLC). Gibbs discloses that erlotinib was in clinical development, with "good anti-cancer activity in preclinical models." The Gibbs reference discloses other references that did not reference erlotinib for use in treating NSCLC and had no data regarding the use of erlotinib for treating NSCLC. OSI's 10-K discloses the company's efforts to obtain FDA approval of erlotinib for treating NSCLC (as well as several other tumor types). This disclosure was limited to Phase I and Phase II clinical trials and there were no clinical trial data in the document.

The Board held that "a person of ordinary skill 'would have combined Gibbs or OSI 10-K with Schnur and had a reasonable expectation of success of achieving the invention of challenged claims 44 and 53.'" Specifically, the Board found that all the limitations of claims 44 and 53 were disclosed in the Schnur reference except treatment of NSCLC with erlotinib, and this element of the claims was disclosed in OSI's 10-K or in the Gibbs disclosure that erlotinib "appear[s] to have good anti-cancer activity in preclinical models, with an acceptable therapeutic index particularly in patients with non-small cell lung cancer" (albeit without any disclosure of clinical data to support these activities). The Board entered judgment in the IPR that claims 44-46 and 53 were invalid for obviousness, and OSI appealed.

The Federal Circuit reversed, in an opinion by Judge Stoll, joined by Judges Newman and Taranto. While acknowledging that the Board's factual findings were due deferential, "substantial evidence" review, citing Dickinson v. Zurko, 527 U.S. 150, 162 (1999), "'[m]ere speculation' is not substantial evidence," citing Intellectual Ventures I LLC v. Motorola Mobility LLC, 870 F.3d 1320, 1331 (Fed. Cir. 2017). The panel used the district court standard to illustrate that "substantial evidence is not a fixed quantum of evidence, and may only be determined with respect to the standard of proof," citing Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1363 (Fed. Cir. 2004) (although the relevance to the issue before the Court is not immediately apparent). Nevertheless, the opinion states that "[t]he same point logically applies to review of the Board's finding," citing In re Hotels.com, L.P., 573 F.3d 1300, 1302 (Fed. Cir. 2009).

Applying these standards, the panel held that the Board's finding was not supported by substantial evidence because:

As an initial matter, in reaching its conclusion, the Board misinterpreted the asserted references to teach more than substantial evidence supports. When the references are properly read, the Board's finding that the asserted references provide a reasonable expectation of success also is not supported by substantial evidence. To be clear, the claims require only treatment of a mammal with erlotinib—efficacy in humans is not required. But the asserted references do not disclose any data or other information about erlotinib's efficacy in treating NSCLC. The record does not contain any clinical (human) data or pre-clinical (animal) data. It does not even include in vitro (test tube) data regarding erlotinib's effect on NSCLC. At the same time, it is undisputed that NSCLC treatment was highly unpredictable with an over 99.5% rate of failure for drugs entering Phase II clinical studies. On this record, we are not persuaded that a reasonable factfinder could conclude that a person of ordinary skill would have reasonably expected success based on the combination of Schnur and Gibbs or Schnur and OSI's 10-K.

The opinion then sets out, for each reference, the deficiencies in the Board's understanding of the references and why alone or in combination they don't support an obviousness determination by substantial evidence. Gibbs, according to the panel, is merely a reference article with no independent data of its own, and the data of others it does disclose does not include data showing that erlotinib could be used to treat NSCLC. The references cited by Gibbs (who submitted a declaration in support of patentee during the IPR) that disclosed erlotinib did not disclose its use for treating NCSLC and the references disclosing NSCLC treatments did not disclose erlotinib, according to the opinion.

Turning to the question of whether the cited art would provide the required reasonable expectation of success, the panel held that "properly read" the cited art did not. Regarding the combination of the Schnur and Gibbs references, "the asserted references do not disclose any information about erlotinib's efficacy in treating NSCLC in a mammal" according to the Court. The Schnur reference "fails to disclose any in vitro or in vivo efficacy data for erlotinib or otherwise suggest the use of erlotinib to treat NSCLC" and Gibbs, "[p]roperly read in context,[] discloses only that erlotinib inhibits the EGFR and has good anti-cancer activity in some cancers, not including NSCLC." The absence of any data "or other promising information regarding erlotinib's efficacy in treating NSCLC," combined with the "highly unpredictable nature of treating NCSLC" precluded in the Court's view these references from providing the skilled worker with a reasonable expectation of success regarding the claimed inventive methods.

With regard to the combination of the Schnur reference and OSI's 10-K document, the Court found fault with the Board's reliance on the existence of Phase I and Phase II clinical trials in the 10-K document, again without any data or reference to data showing that erlotinib could successfully treat NSCLC. The panel also placed the Board's reliance on the 10-K statements in the context of the failure of 1,630 putative EGFR-directed anti-cancer compounds (a 99.5% failure rate), and faulted the Board for not considering this evidence when weighing the reasonableness of any likelihood for success the 10-K disclosed information would have had on the skilled artisan. "These references provide no more than hope—and hope that a potentially promising drug will treat a particular cancer is not enough to create a reasonable expectation of success in a highly unpredictable art such as this" according to the opinion.

The United States intervened over OSI's other grounds for appeal, questioning the constitutionality of subjecting to inter partes review proceedings patents arising from applications filed before passage of the Leahy-Smith America Invents Act. The opinion notes that only after oral argument in this case did the Federal Circuit decide that applying IPR to pre-AIA patents is not a constitutional violation, in Celgene Corp. v. Peter, 931 F.3d 1342, 1362 (Fed. Cir. 2019); and Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-1584, 2019 WL 3938271, at *7 (Fed. Cir. Aug. 21, 2019). In the face of this precedent, OSI conceded and the panel entered judgment in accordance with its earlier decisions that applying the IPR statute to pre-AIA patents is not unconstitutional.

OSI Pharmaceuticals, LLC v. Apotex Inc. (Fed Cir. 2019)
Panel: Circuit Judges Newman, Taranto, and Stoll
Opinion by Circuit Judge Stoll

Posted at 11:59 PM in Federal Circuit, Obviousness, Post-Grant Proceedings | Permalink | Comments (0)

October 01, 2019

Honeywell Int'l v. Arkema Inc. (Fed. Cir. 2019)

By Donald Zuhn --

Today, in Honeywell Int'l v. Arkema Inc., the Federal Circuit vacated a combined Final Written Decision by the U.S. Patent and Trademark Office Patent Trial and Appeal Board in two post-grant review proceedings finding that claims 1-20 of U.S. Patent No. 9,157,017 were unpatentable. The Federal Circuit also remanded to the Board to authorize Honeywell International Inc. to file a motion seeking leave to petition the Director for a Certificate of Correction.

The '017 patent, which is owned by Honeywell and which is directed to fluoroalkene compounds used in refrigeration systems and other applications, recites a chain of priority applications dating back to 2002, all of which were incorporated by reference into the '017 patent. During prosecution of the application that issued as the '017 patent, Honeywell filed a preliminary amendment in which it cancelled all of the claims included in the original application and added new claims directed to different subject matter (i.e., automobile air conditioning systems), but failed to make corresponding amendments to the list of priority applications.

Four months after the '017 patent issued, Arkema Inc. filed two petitions for post-grant review of the '017 patent, asserting in both petitions that the priority applications listed on the face of the '017 patent did not provide written description support for the issued claims. Arkema argued that as a result, the claims of the '017 patent were only entitled to the March 26, 2014 filing date of the application from which the '017 patent issued (as opposed to a 2002 priority date), that the '017 patent was therefore eligible for PGR proceedings, and that several prior art references from 2002 to 2014 rendered the claims of the '017 patent unpatentable. The Board instituted both PGR's.

Honeywell, which asserted that it had first realized the priority chain mistake when preparing its Patent Owner Response, requested permission to file a motion for leave to request a Certificate of Correction to amend the priority claim of the '017 patent. The Board rejected Honeywell's request for authorization to file a motion for leave, indicating that Honeywell had failed to meet the requirements of 35 U.S.C. § 255, and the proceedings before the Board continued until the Board issued a combined Final Written Decision finding claims 1-20 of the '017 patent to be unpatentable. Honeywell appealed to the Federal Circuit.

On appeal, the Federal Circuit wasted little time in "conclud[ing] that the Board abused its discretion by assuming the authority that 35 U.S.C. § 255 expressly delegates to the Director: to determine when a Certificate of Correction is appropriate." The Court noted that pursuant to § 255, patentees may petition the Director to issue a Certificate of Correction to correct "a mistake of a clerical or typographical nature, or of minor character, which was not the fault of the Patent and Trademark Office," and that the patentee must show that the mistake "occurred in good faith" and that "the correction does not involve such changes in the patent as would constitute new matter or would require re-examination." The Court also noted that when a patentee seeks to correct a patent during a post-grant proceeding, the patentee must seek authorization from the Board to file a motion, and if authorization is granted, file a motion with the Board, asking the Board to cede its exclusive jurisdiction so that the patentee can seek a Certificate of Correction from the Director.

The Court, however, explained that "Section 255 does not grant the Board authority to determine whether a mistake in an issued patent is of 'minor character' or 'occurred in good faith,'" adding that this "authority is expressly granted to the Director," and "[t]he Director has not delegated its Section 255 authority to the Board, but has instead promulgated procedures by which patentees may seek the Board's leave to petition the Director for a Certificate of Correction." In the instant case, the Court noted that:

[T]he Board did not review Honeywell's motion for leave to seek a Certificate of Correction from the Director to determine if Honeywell had demonstrated a "sufficient basis" that the mistake "may" be correctable. Instead, the Board prohibited Honeywell from even filing a motion for leave. The Board refused to authorize Honeywell to file a motion for leave because "at this juncture there has been a failure to show that [the] requirements of 255 have been met."

The Court determined that by requiring Honeywell show that the requirements of § 255 had been met before authorizing Honeywell to file a motion for leave to seek a Certificate of Correction from the Director, the Board abused its discretion. The Court also pointed out that the Board lacked the information necessary to make a reasoned decision, and failed to provide an explanation or a reasoned basis for its decision, which impeded meaningful review on appeal. Moreover, the Court pointed out that it could "find nothing in the record, or in the Board's conclusory decision, that warrants denying Honeywell's request to file a motion for leave to petition the Director for a Certificate of Correction correcting the priority chain of the '017 patent."

The Court therefore concluded that the Board had erred in rejecting Honeywell's request to file a motion for leave to petition the Director for a Certificate of Correction, and vacated the Board's Final Written Decision. The Court also remanded to the Board, indicating that on remand the Board should authorize Honeywell to file a motion seeking leave to petition the Director for a Certificate of Correction, and then review Honeywell's motion for leave to evaluate whether prejudice to Arkema requires accommodation.

Honeywell Int'l v. Arkema Inc. (Fed. Cir. 2019)
Panel: Circuit Judges Newman, Reyna, and Hughes
Opinion by Circuit Judge Reyna

Posted at 11:59 PM in Federal Circuit, Patent Trial and Appeal Board, Post-Grant Proceedings | Permalink | Comments (0)

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