In Re: David Tropp

Docket No. 2017-2503

December 12, 2018

Brief summary: Board decision affirming the examiner’s rejection of claims for lacking a sufficient written description under § 112 vacated and remanded because the Board did discuss in its opinion additional language appearing in the application in question that was not present in a parent application.

Summary: Mr. Tropp appealed Board decision affirming the examiner’s rejection of his claims relating to “[a] set of locks for securing travelers’ luggage while facilitating an entity’s authorized screening of luggage” for lacking a sufficient written description under § 112. The Board found that the specification did not sufficiently “describe a ‘set of locks’ with various ‘subsets,’ but instead described a single special lock with different embodiments.” The FC panel reviewed the PTAB’s decision for substantial evidence (“written description is a question of fact”) (Gen. Hosp., FC 2018), explaining that the “failure to consider the totality of the record in assessing written description constitutes legal error” (In re Alton, FC 1996). The application in question (13/412,233 (the ‘233 application)) was filed as a continuation (CON) of Ser. No. 10/756,531 (now US Pat. No. 8,145,576), which is a continuation-in-part (CIP) of Ser. No. 10/706,500 (now US Pat. No. 7,021,537). The FC panel opinion explains that “[t]he ‘537 patent” (the ‘500 application) “claims methods of ‘improving airline luggage inspection’ using ‘a special lock.’” The ‘233 specification, a CON of a CIP of the ‘537 patent, also “states ‘[t]he phrase ‘any special lock of this type’ is intended to include special locks having a multiplicity of sub-types, such as different sizes, different manufacturing designs or styles, etc.’” Mr. Tropp argued that the Board did not refer to this additional language and “mistakenly conclude[ed] it was not relevant because it was new matter.” The FC panel explained that “[t]he Board’s only direct discussion of the additional language in the ‘233 specification is a footnote in its discussion of written description” which “is at best confusing”, finding “Mr. Tropp’s interpretation” to be “the most plausible one.” Further, the FC panel stated, “[e]ven if it is new matter, the language in the ‘233 application as filed is relevant to assessing compliance with the written description requirement” (Cf. Waldemar Link, FC 1994). It therefore found “[t]he Board’s failure to consider this language” to be erroneous and vacated and remanded the decision.

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VirnetX Inc. v. Apple, Inc.

Docket Nos. 2017-2490, -2494 (IPR2016-00331)

December 10, 2018

Brief summary: Board’s conclusions VirnetX’s claims were shown obvious by Apple affirmed as VirnetX was collaterally estopped from relitigating whether prior art RFC2401 was a § 102(b) printed publication following the FC’s VirnetX I decision (FC 2018).

Summary: VirnetX appealed two IPR decisions finding Apple had demonstrated by a preponderance of the evidence that claims 1-11, 14-25, and 28-30 of VirnetX’s US 8,504,696 were unpatentable as obvious. VirnetX argued that “prior art reference RFC2401 was a printed publication” (the “threshold issue”), but the FC panel considered whether VirnetX was collaterally estopped from relitigating this question. Apple’s instituted IPRs alleged obviousness in view of RFC2401 alone and with other references, during which VirnetX argued “RFC2401 was not a printed publication under § 102(b) as of November 1998”, but the Board disagreed with VirnetX. While its appeal of that decision was pending (i.e., this appeal), VirnetX appealed seven other IPRs (VirnetX, FC 2018 (“VirnetX I”)) and the FC summarily affirmed (Rule 36) the Board’s decision of obviousness in view of RFC2401, over VirnetX’s argument that RFC2401 was not a § 102(b) printed publication. The FC panel here explained that “[a] party is collaterally estopped from relitigating an issue is: (1) a prior action presents an identical issue; (2) the prior action actually litigated and adjudged that issue; (3) the judgment in that prior action necessarily required determination of the identical issue; and (4) the prior action featured full representation of the estopped party” (Stephen Slesinger, FC 2012; B&B Hardware, US 2015; Phil-Insul, FC 2017 (“no different in the context of a Rule 36 judgment”)). The FC panel agreed with Apple that the issue of “whether RFC2401 was a printed publication…was necessary or essential to the judgment in VirnetX I”, and that VirnetX was therefore “collaterally estopped…from relitigating the” same question here (e.g., “in three of the seven final written decisions appealed in VirnetX I, the only issue raised was whether RFC2401 was a printed publication…by affirming” those decisions, “this court in VirnetX I necessarily found that RFC2401 was a printed publication.”) The FC panel also noted that “[e]ven if VirnetX were not collaterally estopped, we would affirm the Board’s conclusion that RFC2401 was a printed publication as of November 1998.” VirnetX argued “that RFC2401’s status as a printed publication is not dispositive of all issues raised in this appeal because it preserved in its opening brief the separate issue of whether [IPR] procedures apply retroactively to patents that were filed before Congress enacted the AIA.” The FC panel noted that opening brief was “filed prior to the Supreme Court’s decision in Oil States” (US 2018 (holding that the Seventh Amendment and Article III do not preclude the Board from invalidating patents by IPR)), and found that Virnet X’s brief “in no way provides any arguments specifically preserving the retroactivity issue” (also noting, e.g., that “[a]ll of” VirnetX’s actions “suggests that [its] insistence is likely less than sincere”). Thus, the FC panel affirmed the Board’s obviousness conclusions.

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Novartis Pharm. Corp. et al. v. Ezra Ventures LLC

Docket Nos. 2017-2284

December 7, 2018

Brief summary: FC panel agreed with DC that § 156 PTE was proper even if it might otherwise be invalid for obviousness-type double patenting.

Summary: Ezra appealed DC conclusion that the § 156 Patent Term Extension (PTE) for Novartis’s US 5,604,229 (regarding Novartis’s multiple sclerosis drug Gilenya® (fingolimod)) is not invalidated by obviousness-type double patenting (Merck & Co. v. Hi-Tech Pharmacal Co., FC 2007). The ‘229 patent was filed before the effective date of the URAA and would therefore expire 17 years from issuance (original expiration date: Feb. 18, 2014). Novartis obtained a five-year PTE for the ‘229 patent, moving the expiration date to Feb. 18, 2019. As explained in the FC panel’s opinion, “Novartis owned at least two patents covering Gilenya® that could qualify for PTE under § 156(a): the ‘229 patent and U.S. Patent No. 6,004,565” (a post-URAA patent having a patent term of 20 years from filing (i.e., Sept. 23, 2017), “which claims a method of administering fingolimod”, but selected the ‘229 patent for the PTE (“Congress…chose a flexible approach to give the patentee the choice”, limiting “a PTE grant…to only one of its patents” (Merck, FC 2007)). With the five-year PTE in place, therefore, the pre-URAA ‘229 patent expired after the post-URAA ‘565 patent. Ezra argued that the PTE should not extend the ‘229 term beyond that of the ‘565 patent because of obviousness-type double patenting (e.g., “should be ruled invalid, or otherwise terminally disclaimed”). The DC disagreed and “concluded that the ‘229 patent’s term extension was permissible under § 156” (e.g., under Merck, “a terminally disclaimed patent could still have its term extended with a PTE”). The FC panel reviewed the DC’s decision, a “question[] of statutory interpretation” and its “ultimate conclusion on obviousness-type double patenting”, “de novo, without reference to the [DC’s] interpretation” (Glaxo, FC 1990), and “any predicate findings of fact for clear error” (Eli Lilly, FC 2012). The FC panel disagreed with Ezra, based on its reading of § 156(c)(4), that “two patents were extended here: the extension of the ‘229 patent’s term ‘effectively’ extended the ‘565 patent’s term as well, because the ‘229 patent covers a compound necessary to practice the methods claimed by the ‘565 patent.” The FC panel agreed with the DC that Ezra’s reading of § 156(c)(4) was incorrect (e.g., “there is no reason to read ‘effectively’ as a modifier to ‘extend’”). Thus, the FC panel concluded, “[t]hat the method of the ‘565 patent cannot be practices during the ‘229 patent’s extended term is a permissible consequence of the legal status conferred upon the ‘229 patent by § 156.” The FC panel also concluded “that obviousness-type double patenting does not invalidate a validly obtained PTE” and that the conclusion reached here is “a logical extension of our holding in Merck” (“if a patent, under its pre-PTE expiration date, is valid under all other provisions of the law, then it is entitled to the full term of its PTE”; Proctor & Gamble, FC 2009; Gliead, FC 2014 (“no potential gamesmanship issue through structuring of priority claims”; Abbvie, FC 2014 (“no concern that Novartis, once the ‘229 patent issued, sought to subsequently ‘secur[e] a second, later expiring patent for the same invention”); “agreeing with Ezra would mean that a judge-made doctrine would cut off a statutorily-authorized time extension” (In re Berg, FC 1998). Accordingly, the DC decision was affirmed.

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Novartis Pharm. Corp. et al. v. Breckenridge Pharm. Inc.

Docket Nos. 2017-2173, -2175-6, -2178-80, -2182-84

December 7, 2018

Brief summary: DC decision finding that Novartis’s “earlier-filed, but later expiring, patents’s statutorily-granted 17-year term” was invalid for double-patenting in view of its “later-filed, but earlier-expiring patent” reversed (“a change in patent term law should not truncate the term statutorily assigned to” a pre-URAA patent).

Summary: The question considered here is whether an “earlier-filed, but later expiring, patents’s statutorily-granted 17-year term so that it expires at the same time as the later-filed, but earlier-expiring patent, whose patent term is governed under an intervening statutory scheme of 20 years from that patent’s earliest effective filing date.” In this case, the “earlier-filed, but later expiring” patent is Novartis’s US 5,665,772 which claims everolimus (Zortress®, Afinitor®) (filed before the 20-year term went into effect (pre-URAA) and was set to expire 17 years from issuance, on Sept. 9, 2014) and “the later-filed, but earlier-expiring patent” is Novartis’s US 6,440,990 directed to methods of treatment using everolimus (filed after the 20-year term went into effect (post-URAA) and expiring on Sept. 23, 2013 which is 20 years from its earliest effective filing date). The ‘772 patent was extended for five years under 35 USC § 156 and therefore was set to expire on September 9, 2019. The DC held, however, under Gilead Sciences (FC 2014 (holding that a later-filed but earlier-expiring patent can serve as a double-patenting reference for an earlier-filed but later-expiring patent)), that the ‘990 patent is “a proper double patenting reference for the ‘772 patent” which was therefore held to be invalid. The FC panel explained that its Gilead opinion “was limited to the context of when both patents in question are post-URAA patents” and “thus does not control the present situation.” “Instead,” the FC panel wrote, “the correct framework here is to apply the traditional obviousness-type double patenting practices extant in the pre-URAA era to the pre-URAA ‘772 patent and look to the ‘772 patent’s issuance date as the reference point for obviousness-type double patenting”. The FC panel found that “[u]nder this framework, and because a change in patent term law should not truncate the term statutorily assigned to the pre-URAA ‘772 patent…the ‘990 patent is not a proper double patenting reference for the ‘772 patent.” It explained that “unlike Gilead” (or Abbvie, FC 2014, explained separately and relating to post-URAA patents), “Novartis here did not structure the priority claim of its ‘990 patent’s term to capture additional patent term beyond the term it was granted for its ‘772 patent.” The FC panel noted that as it “recognized in Gilead, looking to patent issuance dates pre-URAA serves as a reliable guide for assessing whether a patent may serve as a double patenting reference against another patent” but that, in this case, “[w]hen the ‘772 patent issued, the ‘990 patent had not yet issued and thus did not exist as a double-patenting reference against the ‘772 patent” (“consistent with the URAA transition statute, which ensures that patent owners, like Novartis with its pre-URAA ‘772 patent, enjoy the greater of a 20-year from earliest effective filing date or 17-year from issuance of patent term…The statute reads…‘The term…shall be the greater of”…its ‘990 patent’s term was truncated by the intervening change in law. To find that obviousness-type double patenting applies here because a post-URAA patent expires earlier would abrogate Novartis’s right to enjoy one full patent term on its invention.”) The DC decision was therefore reversed.

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Ancora Technologies, Inc. v. HTC America, Inc. et al.

Docket Nos. 2018-1404

Nov. 16, 2018

Brief summary: DC grant of HTC’s motion to dismiss under § 101 reversed and remanded since “‘[t]he claimed method…specifically identifies how [a] functionality improvement is effectuated in an assertedly unexpected way” (i.e., not an abstract concept under Alice step one; Enfish, FC 2016).

Summary: This FC panel opinion notes that the patent disputed in this case (Ancora’s US 6,411,941) was previously before the FC (Ancora, FC 2014) that raised issued of claim construction and indefiniteness (DC construction of “program” reversed/remanded, “volatile memory”/“non-volatile memory” not indefinite). In this case, the DC granted HTC’s motion to dismiss for invalidity under § 101 (“the claims are directed to, and ultimately claim no more than, an abstract idea”). This FC panel reversed the DC’s holding under Enfish (FC 2016), finding “the claimed advance is a concrete assignment of specified functions among a computer’s components to improve computer security” to be patentable under § 101. The FC panel opinion explains that “the ‘941 patent describes an asserted improvement based on assigning certain functions to particular computer components and having them interact in specified ways” using a “key” (“‘a unique identification code’ for the computer”) “embedded in the read-only memory (ROM) of the computer’s Basic Input Output System (BIOS) module” and a “license record” that confirms the software is licensed to be run on that computer. “The inventive method”, the FC panel wrote, “uses a modifiable part of the BIOS memory-not other computer memory…to determine whether the program is licensed to run on that computer.” The ‘914 patent claims “[a] method of restricting software operation within a license for use” by “selecting a program residing in the volatile memory”, “using an agent to set up a verification struction in the erasable non-volatile memory of the BIOS”, “verifying the program”, and “acting on the program according to the verification.” The FC panel explained that, in addition to the DC action leading to this appeal, HTC petitioned the USPTO for review of the ‘941 patent as a Covered Business Method, alleging invalidity under § 101, which was denied as the Board concluded “that the ‘941 patent claims a technical solution to a technical problem and comes within the ‘technological inventions’ exception for such reviews” (§ 18(d)(1), 37 CFR § 42.301(b)). The DC found that the claims were focused on an “abstract concept” under Alice’s step one analysis (Alice, US 2014), and “contained no ‘inventive concept’” under Alice’s step two analysis (“calls for nothing more than ‘[s]toring data in the memory of a computer component that generally stores data”). Under Finjan (FC 2018 (“behavior-based virus scan” is “a specific improvement to computer functionality”), Enfish (FC 2016 (“self-referential tabs [that] improved the way that computers operated and handled data”), BSG Tech. (FC 2018), Visual Memory (FC 2017 (patentable as “specifically ‘directed to an improved computer memory system, not to the abstract idea of categorical data storage”), Core Wireless (FC 2018 (“method for making websites easier to navigate…not directed to an abstract idea”), and Data Engine (FC 2018 (“method for navigating through three-dimensional spreadsheets” not abstract), the FC panel explained that the § 101 inquiry for software “of turns on whether the claims focus on ‘the specific asserted improvement in computer capabilities…or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” The FC panel explained that “[i]mproving security…can be a non-abstract computer-functionality improvement if done by a specific technique that departs from earlier approaches to solve a computer-specific problem”. And, here, the FC panel determined, “‘[t]he claimed method…specifically identifies how that functionality improvement is effectuated in an assertedly unexpected way” (also citing BASCOM, FC 2016 (not abstract as “claimed invention addressed the disadvantages of the prior art…technical improvement over the prior art ways”) and Intell. Ventures I, FC 2016 (abstract as “claim at issue did not ‘recite[] any improvement to conventional virus screening software, nor…solve any problem”)). Thus, the DC decision was reversed and remanded.

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Enplas Display Device Corp. et al. v. Seoul Semiconductor Company, Ltd.

Docket Nos. 2016-2599

Nov. 19, 2018

Brief summary: DC findings of no anticipation affirmed; damages award vacated (e.g., “damages calculated by applying a royalty rate to sales of non-accused lenses cannot support a jury’s verdict on damages”).

Summary: Enplas appealed DC finding that claim 20 of SSC’s US 6,007,209 and the claims of SSC’s US 6,473,554 directed to methods of backlighting display panels are not anticipated, denial of JMOL of no induced infringement and “that the jury’s damages award is excessive and not supported by the trial evidence.” The ‘209 and ‘554 patent claims approach backlighting by two different methods (‘209: “directing light rays emitted by plural light sources mounted on [the] internal bottom wall” of the display housing; ‘554: using “an illumination coupler”). Enplas and SSC “collaborated to manufacture lenses for SSC’s light bars, which are covered by SSC’s” patents, and “SSC presented testimony that…SSC employees informed Enplas that the end product…would be covered by SSC’s patents” and that SSC “understood that it would have an exclusive relationship with Enplas for sales of the lenses.” SSC later determined that “Enplas had provided the lenses to SSC competitors” and that the end products infringed the ‘209 and ‘554 patents, and sent Enplas a letter alleging induced and contributory infringement. Enplas then moved for a declaratory judgment (DJ) that the patents were invalid and not infringed. The DC denied Enplas’s motion for summary judgment (SJ) that ‘209 claim 20 was anticipated, and then held a jury trial regarding anticipation of the ‘554 patent and the infringement issues. The jury found the ‘554 claims were not anticipated and “awarded $4 million in damages for a one-time freedom-to-operate payment for the ‘554 patent and $70,000 for the ‘209 patent”, and the DC denied Enplas’s post-trial motions regarding the same. The FC panel agreed with the DC’s finding of no anticipation of ‘209 claim 20 because Enplas’s expert testimony “[a]t most…suggests that Gleckman could have been modified” to meet the claim limitations which “is not enough…for anticipation” (In re Smith, FC 2017 (anticipation “only if each and every element is found within a single prior art reference, arranged as claimed”); In re Chudik, FC 2017). The FC panel also explained that the parties presented “conflicting expert testimony”, that “the jury is permitted to make credibility determinations” (MobileMedia, FC 2015), and that it therefore found the finding of no anticipation to be supported by substantial evidence. Enplas argued the DC’s finding of induced infringement because SSC did not show “that it had specific intent to induced infringement in the” US. The FC panel found that the jury’s finding was supported by substantial evidence (35 USC 271(b) (“Whoever actively induces infringement of a patent shall be liable as an infringer.”) (DSU Med., FC 2006 (“specific intent and action to induce infringement must be proven”); Merial, FC 2012) since Enplas did not dispute it knew of that the product it sold to SSC were covered by the patents, and evidence “that it had a 50% worldwide market share” meaning it was likely some of the lenses would end up in the US, “manufactured lenses specifically for SSC’s light bars, but then sold them to others”, and provided instructions to users (Microsoft, FC 2014 (“evidence of the required mental state”). The FC panel acknowledged that “mere knowledge of a possible infringement is not enough” (DSU) but also wrote “that the evidence in this case, while not overwhelming, provides at least circumstantial evidence” (Water Techs., FC 1988; Lucent, FC 2009). The $4 million damages award for infringement of the ‘554 patent was vacated, however, because “damages calculated by applying a royalty rate to sales of non-accused lenses cannot support a jury’s verdict on damages” (FN3 explains that, although it does not apply here, “patentees may sometimes recover damages for ‘convoyed sales’, where an unpatented product is sold with the patented product…‘analogous to components of a single assembly’ (Rite-Hite, FC 1995)). Judge Newman dissented from the FC panel’s damages award decision, arguing that the jury’s verdict is supported by substantial evidence.

Posted in Anticipation (35 USC 102), Contributory Infringement, Damages, Inducement to Infringe, Royalties | Leave a comment

Pfizer, Inc. et al. v. Genentech, Inc.

IPR2017-01488 (US 6,407,213B1; IPR2017-02139 joined (Samsung Bioepis Co.))
Final Written Decision
November 29, 2018

Brief summary: Certain claims of Genentech’s US 6,407,213B1 shown by a preponderance of the evidence to be unpatentable for obviousness. Only claims 12, 42, 60, 65, 71, 73-77 and 79 were found either not anticipated or obvious in view of the cited art by a preponderance of the evidence.

Summary: The ‘213 patent claims “[a] humanized antibody variable domain comprising Complementarity Determining Region (CDR) amino acid residues” with particular “Framework Region (FR) amino acid substation[s]”. This FWD notes that the ‘213 patent is the subject of multiple ongoing litigations with Amgen, Pfizer or Celltrion and has been the subject of several pending and terminated IPRs. Pfizer alleged obviousness on nine different grounds of anticipation or obviousness, each directed at different claims and based on different references or combinations of references. The Board explained that to anticipate under § 102 “a single prior art reference must expressly or inherently disclose each claim limitation…with sufficient precision and detail to establish that the subject matter existed in the prior art”, although “the reference need not satisfy an ipsissimis verbis test” and “it is proper to take into account…inferences which one skilled in the art would reasonably be expected to draw therefrom” (Finisar, FC 2008; Verve, FC 2002; In re Gleave, FC 2009; In re Preda, CCPA 1968; In re Arkley, CCPA 1972 (“without any need for picking choosing and combining various disclosures”); Wm. Wrigley, FC 2012 (one “could ‘at once envisage’ each member of the genus”)). The Board reviewed obviousness by making the “underlying factual determinations” of Graham (US 1966) and taking into “account…inferences and creative steps that a person of ordinary skill in the art would employ” (KSR, US 2007; In re Magnum Oil, FC 2016 (“reasonable expectation of success”)). The person of skill in the art was determined to “have a Ph.D. or equivalent” of an M.D., and “experience with” antibodies, the Board noting “that the prior art itself demonstrates this level of skill in the art at the time of the invention” (Okajima, FC 2001). The terms “consensus human variable domain” and “lacks immunogenicity compared to a non-human parent antibody” were construed under the broadest reasonable construction (BRC). The Board found that Pfizer had met its initial burden to show the Kurle and Queen 1990 reference was prior art under § 102 (Dynamic Drinkware, FC 2015) but that the disputed claims were entitled to a priority date of less than one year before the publication date of the reference (i.e., was not § 102(b) prior art), and that Genentech provided sufficient evidence of prior invention (i.e., antedating evidence; antibodies met all claim limitations, worked for their intended purpose, inventor’s testimony is credible and sufficiently corroborated (e.g., cannot depend on “unwitnessed notebook alone” (Medichem, FC 2006; Proctor & Gamble, FC 2009) or “solely on statements or writings by the inventor” (Cooper, FC 1998); NFC Tech., FC 2017 (evidence considered “as a whole, not individually”, “rule of reason”)).

Claims 1, 2, 25, 29, 80, and 81 were found to be anticipated and obvious in view of other references (Kurrle and/or Queen 1990). It also found the substitutions of claims 63, 66, 67, and 72 inherently anticipated by the Kurrle reference, noting that “[a]lthough it may be difficult to predict in advance which of Kurrle’s substitutions preserve binding affinity, binding is an inherent property of the antibody itself, and which would become evident upon routine testing”. Claims 75-76 were not found anticipated because “[t]he 48 potential single substitutions disclosed in Kurrle provide a large number of potential two-way combinations” (one would not have “‘at once envisage[d]’ this particular combination” (Wm. Wrigley, FC 2012); “selection of both of these residues amounts to improper ‘picking and choosing’” (Arkley, CCPA 1972). Claim 63 found anticipated since “the discovery of a previously unappreciated property…does not render the old composition patentably new” (Atlas Powder, FC 1999). Claims 4 and 62-64 were found anticipated for similar reasons but in view of the Queen 1990 reference.

The Board also considered Pfizer’s obviousness arguments, finding some claims invalid for obviousness and others valid (e.g., prior “sets of candidate amino acids for mouse-to-human substitution” provided “a reason to combine the teachings” and “consensus light chain” in the prior art (re: claims 4, 62 and 69), “three-part substitutions of claim 77” not obvious since “substituting framework region residues for any particular antibody were-and quite possibly remain-unpredictable” (KSR, US 2007; Ortho-McNeil, FC 2008); “one of ordinary skill in the art would have reasonably applied the principles of Kurrle and/or Queen along with routine testing to arrive at antibodies” of claims 30, 31 and 33). The Board was not persuaded with Genentech’s secondary consideration arguments (e.g., “no evidence that the ‘consensus’ approach has any advantage over the ‘best fit’ approach”, “Dr. Wilson does little to establish that the recited [most successful antibodies] embody any claim of the ‘231 patent”, “no evidence that” claimed “substitutions” are “required for…superior binding affinity”, “limited evidence for nexus” (In re Huang-Hung Kao, FC 2011; Allergan, FC 2014; In re Greenfield, CCPA 1978)). In the end, the Board concluded only claims 12, 42, 60, 65, 71, 73-77 and 79 were found either not anticipated or obvious in view of the cited art by a preponderance of the evidence.

Posted in Anticipation (35 USC 102), Inter Parties Review (IPR), IPR, Obviousness | Leave a comment