The Federal Circuit’s recent decision to uphold a Patent Trial and Appeal Board ruling that dietary supplement patents licensed by Merck KGaA are invalid as obvious illustrates the many risks for patents in inter partes reviews as well as the difficulty of overturning PTAB decisions on appeal.
The Federal Circuit's affirmance also provides a clear picture of the deference that the appeals court is giving the board in AIA reviews on factual issues like secondary considerations.
IP associate David Soofian noted that given such findings are subject to deference on appeal, they will be harder to overturn, adding in that “the standard of review can make or break a case."
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