Spotlight On Upcoming Oral Arguments – December 2017

Monday, December 4, 2017

Ariosa Diagnostics, Inc. v. Illumina, Inc. No. 16-2388, Courtroom 203

Ariosa appeals from a PTAB decision denying Ariosa's IPR petition and upholding the validity of Illumina's '794 patent.  In reaching its decision, the PTAB found that Ariosa failed to establish that the asserted reference qualified as § 102(e) invalidating prior art under the standard set forth in Dynamic Drinkware LLC v. National Graphics, Inc.  Ariosa argues that the PTAB improperly extended Dynamic Drinkware to published patent applications, and that a published application qualifies as prior art for all it discloses, and that a published application is entitled to a prior art date as of the earliest application in the chain containing the relevant disclosure.  Illumina argues that the PTAB correctly interpreted Dynamic Drinkware to require that § 119(e)(1) must be satisfied for prior art pursuant to § 102(e) to gain the earlier filing date of a provisional