Substantial Evidence Standard

News & Analysis as of

Between a Rock and a Hard Place: Federal Circuit Says It's Required to Accord the PTAB Deference Until Instructed Otherwise by...

On Tuesday, April 26, 2016, the Federal Circuit issued an order denying a petition filed by Merck & Cie for rehearing en banc of an Inter Partes Review (“IPR”) final written decision by the Patent Trial and Appeal Board...more

The Beat Goes On: D.C. Circuit Upholds NLRB View That Orchestra Musicians Are Employees

Last week, a federal appeals court enforced a ruling by the NLRB that orchestra musicians are employees, not independent contractors. The import of the decision in Lancaster Symphony Orchestra v. NLRB is sure to reverberate...more

Federal Circuit Maintains “Substantial Evidence” Standard of Review in AIA Post Grant Proceedings

On April 26, 2016, the Federal Circuit denied a petition seeking rehearing en banc of its application of the “substantial evidence” standard of review in post-grant administrative proceedings, in the case of Merck & Cie v....more

Petitioners: Put All Needed Evidence in Your Petition - Redline Detection, LLC v. Star Envirotech, Inc.

Addressing the rules governing admissibility of supplemental information during an inter partes review (IPR) proceeding, the U.S. Court of Appeals for the Federal Circuit affirmed the decision of the Patent Trial and Appeal...more

“Substantial Evidence” Review Dooms PTAB Appeal - Merck & Cie v. Gnosis S.P.A.

Addressing the issue of obviousness in the context of an inter partes review (IPR), the U.S. Court of Appeals for the Federal Circuit affirmed a decision by the Patent Trial and Appeal Board (PTAB or Board) under a...more

Federal Circuit Review | January 2016

The Federal Circuit Will Review Appeals from Inter Partes Review Proceedings Under the “Substantial Evidence” Standard - In Merck & Cie v. Gnosis S.p.A., Appeal No. 2014-1779, the Federal Circuit affirmed a PTAB IPR...more

PTAB Trial Standard Of Review Requires Affirmance Despite Contrary Evidence

In Merck & Cie v. Gnosis S.p.A., the Federal Circuit affirmed the decision of the USPTO Patent Trial and Appeal Board (PTAB) that held the challenged claims obvious in an Inter Partes Review (IPR) proceeding. Although the...more

Court Can’t Change the Claim Construction After a Verdict

In Wi-Lan, Inc. v. Apple Inc., [2014-1437, 2014-1485] (Fed. Cir. 2016), the Federal Circuit reversed the trial court’s JMOL determination of no invalidity of U.S. Patent No. RE37,802 because it was based on a post-verdict...more

It is Obvious to Vary Result-Effective Variables

In In re Urbanski, [2015-1272] (Fed. Cir. 2016), the Federal Circuit affirmed the PTAB’s affirmance of the rejection on obviousness grounds of claims to a method for making an enzymatic hydrolysate of a soy fiber. The...more

Federal Circuit Affirms PTAB's IPR Decision Invalidating A Pharmaceutical Patent

On December 17, 2015, in Merck v. Gnosis, the Federal Circuit affirmed the PTAB’s IPR Decision finding a pharmaceutical patent invalid for obviousness. Justice Newman vigorously dissented from the majority’s view (Justices...more

Written Description Standard for Negative Claim Limitations - Inphi Corp. v. Netlist, Inc.

Do negative claim limitations need to adhere to a heightened written description standard? That was the question the U.S. Court of Appeals for the Federal Circuit addressed in an appeal from a inter partes reexamination,...more

Fed. Cir. Defers to PTAB Finding of Obviousness in First Pharma IPR Reviews (Merck v. Gnosis)

On December 17, 2015, the Federal Circuit issued a precedential decision affirming a determination by the Patent Trial and Appeal Board (“PTAB”) that patent claims related to methods of treating elevated homocysteine levels...more

Teaching Away Must Be Apparent from the Art as a Whole, and not Just Isolated Examples

In Merck & Cie v. Gnosis S.P.A., [20140-1779] (Fed. Cir. 2015) the Federal Circuit affirmed a PTAB decision in an IPR that the claims were invalid for obviousness, rejected patent owner Merck’s arguments that the prior art...more

Merck & Cie v. Gnosis S.P.A. (Fed. Cir. 2015)

As she has done many times before (and so many times that she has been unfairly characterized as a scold on the Federal Circuit), Judge Lorraine Newman dissented from the panel majority decision affirming an obviousness...more

Federal Circuit Addresses Substantial Evidence as Standard of Review in IPR

In June, 2014, the PTAB declared all challenged claims in two IPR trials brought by Gnosis S.p.A. to be unpatentable based on obviousness grounds. Gnosis S.p.A. v. S. Ala. Medical Science Found., IPR2013-00116 and Gnosis...more

First Circuit Overturns SEC Commissioners’ Sanctions Order

As we have discussed before, the SEC’s increased use of in-house administrative proceedings in enforcement actions involving allegations of fraud has been a subject of considerable debate. Commentators have questioned the...more

First Circuit Overturns SEC Ruling in Flannery v. SEC

The First Circuit’s decision underscores the limits of court deference to Commission decisions, gives teeth to the “substantial evidence” standard of review, and provides a valuable roadmap for evaluating and defending...more

First Circuit Reverses SEC In State Street Bank Case

The long ordeal of two former employees of State Street Bank and Trust Company appears to have come to an end. Initially charged by the SEC with making false statements in the mist of the market crisis, the Administrative Law...more

Federal Circuit Weighs in on IPR Again, and Judge Newman Regains Her Footing as Pro-Patent Crusader

The Federal Circuit issued another substantive, IPR-related opinion today in Prolitec, Inc. v. ScentAir Techs., Inc., 2015-1020 (Fed. Cir. Dec. 4, 2015) (appealing from IPR2013-00179). The Board had determined that each of...more

Overview of Comments on the USPTO's July 2015 Update to the Interim Examination Guidance

In late July, the USPTO issued its July 2015 Update to the 2014 Interim Section 101 Patent Eligibility Guidance (IEG). The July 2015 Update addresses a number of the issues and concerns raised in the public comments to the...more

CEQA Categorical Exemption Case Opinion Ordered Slightly Modified By Supreme Court; Berkeley Hillside Preservation Judgment Is...

On May 27, 2015, the California Supreme Court filed a 4-page order modifying portions of the majority and concurring opinions previously filed March 2, 2015, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60...more

Anticipation Found Even Where the Prior Art Did Not Disclose Limitations Arranged the Same Way as in the Claim - Kennametal, Inc....

Applying the substantial evidence standard to support an invalidity determination by the Patent Trial and Appeal Board (PTAB or Board), the U.S. Court of Appeals for the Federal Circuit affirmed the PTAB’s decision with...more

District of Columbia Circuit Provides Good News and Bad News in a Work Product Case

Ironically, federal courts applying the federal work product rule take widely varying positions on a number of key elements, including the protection's duration; its applicability to litigation-related business documents; and...more

Do Witness Interview Memoranda Deserve Opinion or Merely Fact Work Product Protection?: Part I

Unlike the absolute attorney-client privilege, the work product doctrine offers two possible levels of protection. Lawyers' (and other client representatives') opinions deserve absolute or nearly absolute protection in most...more

California Supreme Court Issues CEQA Ruling Regarding Categorical Exemptions - The Practical Result of the Court's Decision Is...

The California Supreme Court issued its opinion in Berkeley Hillside Preservation v. City of Berkeley (Case No. S201116), overturning the Court of Appeal and charting a course for the future application of categorical...more

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