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June 12, 2014

Obzilla Amok

The CAFC continues its rampage against the rule of law. In Allergan v. Apotex (CAFC 2013-1245), a panel finds obviousness over the very reference the USPTO carefully considered (Johnstone), finding the reference "does not teach away," and that "there was nothing left for a chemist to do." In dissent, Judge Chen notes: "This is not a situation in which there are a finite number of identified, predictable solutions. Rather, the single sentence in Johnstone actually proposes hundreds of thousands, or even millions, of variations." Thus, the panel majority - new Chief Judge Prost and Judge Reyna - ignores the repeated precedence of KSR, Ruschig, Eli Lilly and others to achieve a new level of caprice.

Posted by Patent Hawk at June 12, 2014 8:15 AM | Prior Art