PTAB Denies IPR Petition Based On Failure To Show That Asserted References Qualify As Prior Art

The Patent Trial and Appeal Board ("PTAB") recently denied institution of Teva Pharmaceutical USA, Inc.'s ("Petitioner") petition for inter partes review (IPR) primarily based on Petitioner's failure to make a sufficient threshold showing that two asserted references qualify as prior art. Less than a month earlier the PTAB denied institution (please click here for more information) of other IPR petitions filed by the same Petitioner as being time barred by one day, despite Petitioner's claim that the one day delay was due to technical issues with the PTAB's online filing system.

In this latest proceeding, the PTAB denied institution based on a finding that Petitioner had not adequately shown that the two asserted references, including a label with a 2002 copyright date, were in fact "printed publications" under 35 U.S.C. §§ 102 and 311(b). All grounds of unpatentability raised by Petitioner relied on these two references.