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ARTICLE · 21 JULY 2015

Simultaneous Invention As Secondary Evidence Of Obviousness

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I do not usually write about non-precedential Federal Circuit decisions, but I could not let the discussion of "simultaneous invention" in Columbia University v. Illumina, Inc., go without comment.

United StatesIntellectual Property
Courtenay Brinckerhoff
Courtenay Brinckerhoff
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I do not usually write about non-precedential Federal Circuit decisions, but I could not let the discussion of "simultaneous invention" in Columbia University v. Illumina, Inc., go without comment. As if protecting patents from a hindsight-based determination of obviousness is not challenging enough, this theory holds that subsequent invention by another relatively soon after the invention at issue can support a finding of obviousness.

The Columbia University DNA Sequencing Patents

The patents at issue were three DNA sequencing patents: U.S. Patent No. 7,713,698; U.S. Patent No. 8,088,575; and U.S. Patent No. 7,790,869. Illumina challenged selected claims of the patents in Inter Partes Review (IPR) proceedings, and the USPTO Patent Trial and Appeal Board (PTAB) found all challenged claims anticipated or obvious over the asserted prior art references

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