“Substantial Evidence” Includes That Not Relied on by the Board

In a case involving an interference between a patent and an allowed patent application, both directed toward the production of human fibrinogen protein in non-human milk, the U.S. Court of Appeals for the Federal Circuit affirmed the decision of the U.S. Patent and Trademark Office Board of Patent Appeals and Interference (the Board) that the claims were obvious, as being supported by "substantial evidence." Even though a determination of obviousness is a question of law to be decided de novo, the Federal Circuit deferred to the underlying factual determinations made by the Board regarding reasonable expectation of success in support of its obviousness determination. In doing so, the Court considered references not relied on by the Board. Velander et al. v. Garner et al., Case No. 02-1366 (Fed. Cir. Nov. 5, 2003). Fibrinogen is a serum protein synthesized by the liver and utilized in the blood to form a clot. The production and isolation of recombinant fibrinogen provides a