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On the question of obviousness, the Federal Circuit relied on the District Court's factual determinations that were, according to the panel, applied using the analysis set forth in Graham v. John Deere Co.; KSR Int'l Co. v. Teleflex, Inc. was not cited by the CAFC, or apparently by the parties. The Federal Circuit also affirmed that correction of the typographical error was not an impermissible broadening under the reissue statute.
The significance of this decision is found more in what the Federal Circuit did not say than in its relatively pedestrian affirmance. An open question remaining after KSR is whether enantiomer patents would fall within the ambit of the Supreme Court's seemingly-expansive dicta regarding what is obvious to try:
When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under ยง103.
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| enantiomer: |
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noun |
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either one of a pair of compounds (crystals or molecules) that are mirror images on each other but are not identical Either of two stereoisomers that are mirror images of one another but cannot be superimposed on one another and that rotate the plane of polarized light in opposite directions. Enantiomers usually behave the same chemically but differ in optical behavior and sometimes in how quickly they react with other enantiomers. ----- IMO (I am not an attorney as everyone knows) this particular pharmacology case appears quite diff from litigation re semiconductor technology wrt interjecting the KSR/O ruling. Tho it does certainly show that the KSR/O ruling may in fact be considered and implemented in a Federal Court case. Even the article you previously cited recognizes that KSR/O provides a broader test, even if one views it as only marginally so. The point is that, if KSR/O gives more strength to the defendants, even to a small degree, why would they abandon it during settlement negotiations..?? I personally do not see this going to court.. I see settlement as I have stated numerous times.. but I also believe the Js are citing KSR/O in these settlement negotiations as one of the few cards they happen to hold, regardless of what weight in may actually carry. Regards |
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