interference : CAFC Alert

In widely watched biotech case, skepticism by others in the art and other factors give rise to a lack of a reasonable expectation of success, and thus a lack of interference-in-fact

| December 17, 2018

Regents of the University of California et al. v. Broad Institute, Inc., et al.

September 21, 2018

Before Prost, Schall and Moore.  Opinion by Moore.


The CAFC upheld the PTAB’s decision of the lack of an interference-in-fact between UC’s claims generically directed to the CRISPR-Cas9 gene editing system in any context and Broad’s claims directed to the CRISPR-Cas9 system in eukaryotes specifically.  The CAFC affirmed the PTAB’s weighing of substantial evidence with respect to the likelihood of success of one skilled in the art based on UC’s claims, in view of statements by the inventors and experts, as well as the details of other gene editing system.  The CAFC dismissed UC’s arguments regarding an alleged “specific instructions” test and evidence of simultaneous invention.

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A Distinction Without A Difference

| March 21, 2016

Ulf Bamberg, Peter Kummer, Ilona Stiburek v. Jodi A. Dalvey, Nabil F. Nasser

March 9, 2016

Before Moore, Hughes and Stoll.  Opinion by Hughes.


The CAFC upheld the Board’s decision that the Bamberg claims were correctly interpreted in light of the Dalvey patents from which they were copied, and functional limitations were not improperly imported.

The CAFC upheld that, in light of the claim interpretation, the Bamberg specification failed to provide adequate written description.

The CAFC found that the Board did not err in denying Bamberg’s motion to amend the claim set due to a lack of claim chart.

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Unexpected results, not disclosed in the specification, of a compound may overcome a prima facie case of obviousness

| April 2, 2012

Genetics Institute, LLC v. Novartis Vaccines and Diagnostics, Inc.

August 23, 2011

Panel:  Lourie, Plager and Dyk.  Opinion by Lourie.  Concurrence-in-part and dissent-in part by Dyk.


Today, we bring you the first in a series of three articles regarding an important case from last year.   This article discusses the following question:

Question:  Can evidence of unexpected results of a compound be used to overcome a prima facie case of obviousness, where the unexpected result is not disclosed in the specification as originally filed?

Answer: Yes.

Evidence of unexpected results to a property of a compound, where the unexpected result is not disclosed in the specification as originally filed, can be used to overcome a prima facie case of obviousness.

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