Hard To Reverse Adverse PTAB Rulings Under Substantial Evidence Standard

Over a vigorous dissent, the US Court of Appeals for the Federal Circuit affirmed a Patent Trial and Appeal Board (PTAB or Board) decision affirming rejection of all pending claims of a patent as being obvious, as supported by substantial evidence notwithstanding a showing of commercial success. In re: Efthymiopoulos, Case No. 16-1003 (Fed. Cir., Oct. 18, 2016) (Prost, CJ) (Newman, J, dissenting).

The patent application at issue related to methods of treating or preventing influenza by administering the drug zanamivir by oral inhalation. The Examiner, affirmed by the PTAB, rejected all pending claims as obvious, primarily over two prior art references: Von Itzstein II in view of Von Itzstein I.