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REEXAMINATION

REVERSED
Tech Center 3600 Transportation, Construction, Electronic Commerce, Agriculture, National Security, and License & Review
3618 Ex parte Dane Technologies, Inc. Ex Parte 7493979 et al 12/125,138 90013576 - (D) MARTIN 112(1)/112(2) Winthrop & Weinstine, P.A. ENGLISH, PETER C original SWENSON, BRIAN L

AFFIRMED
Tech Center 1600 Biotechnology and Organic Chemistry
1636 UNIVERSITY OF PITTSBURGH OF THE COMMOMWEALTH SYSTEM OF HIGHER EDUCATION (Patent Owner and Appellant) v. CELLERIX (Requester and Cross-Appellant) Ex Parte 6,777,231 et al 09/936,665 95001592 - (D) LEBOVITZ 112(2)/102 112(1)/101/103 LEYDIG VOIT & MAYER, LTD THIRD PARTY REQUESTER: MORRISON & FOERSTER LLP PONNALURI, PADMASHRI original KETTER, JAMES S

Tech Center 3600 Transportation, Construction, Electronic Commerce, Agriculture, National Security, and License & Review
3618 Ex parte Dane Technologies, Inc. Ex Parte 7389836 et al 10/947,831 90013575 - (D) MARTIN 102/103 Winthrop & Weinstine, P.A. ENGLISH, PETER C original SWENSON, BRIAN L

Tech Center 3700 Mechanical Engineering, Manufacturing, and Products & Design
3725 ACCO BRANDS CORPORATION Requester, Respondent v. FELLOWES, INC. Patent Owner, Appellant Ex Parte 7631822 et al 11/444,491 95001736 - (D) SONG 103 Pillsbury Winthrop Shaw Pittman, LLP THIRD PARTY REQUESTER: MICHAEL BEST & FRIEDRICH LLP SPAHN, GAY original MILLER, BENA B

Moreover, while noting that “Leo Pharmaceutical discusses the number of years that passed from the time the prior art was invented until the filing of the patent at issue,” the Federal Circuit recently explained in Nike, Inc. v. Adidas AG:

our reversal of the Patent Board’s obviousness determination [in Leo Pharmaceutical] hinged on the fact that nothing in the cited prior art appreciated the problem the invention recognized and then solved. Id. at 1353 . . . . Because there was no prior recognition of the problem solved by the subject invention, there was no reason in the record why one of skill in the art would attempt to combine the cited prior art to arrive at the claimed invention.  Id. at 1354 . . . ; see also id. at 1356–57 . . . .

In this way, our decision in Leo Pharmaceutical is entirely consistent with established precedent that “[t]he mere age of the references is not persuasive of the unobviousness of the combination of their teachings, absent evidence that, notwithstanding knowledge of the references, the art tried and failed to solve the problem.”  In re Wright, 569 F.2d 1124, 1127 (CCPA 1977); see also Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed.Cir.2004) . . . . Leo Pharmaceutical recognizes the natural consequence of this idea: Persons of skill in the art cannot have tried and failed to solve the problem if they were never aware of that problem to begin with. Thus, the number of years that passed between the prior art and the claimed invention may be a relevant factor to underscore that skilled artisans had long failed to appreciate the problem solved by that invention. Here, there is no question that skilled artisans knew of the desire to reduce waste when producing wearable, knitted shoe uppers because that problem is expressly recognized in Nishida. Thus, Leo Pharmaceutical does not control the present case.

Nike, Inc. v. Adidas AG, 812 F.3d 1326, 1337–38 (Fed. Cir. 2016).

3766 Ex parte KONINKLIJKE PHILIPS N.V. and PHILIPS ELECTRONICS NORTH AMERICA CORPORATION Appellant, Patent Owner Ex Parte 5,607,454 et al 08/227,553 90013483 - (D) SONG 102/103 PHILIPS INTELLECTUAL PROPERTY & STANDARDS THIRD PARTY REQUESTER: COOLEY LLP ATTN: PATENT GROUP DAWSON, GLENN K original SCHAETZLE, KENNEDY

3788 Ex parte John T. Ziemba Ex Parte 8418852 et al 12/798,764 90013486 - (D) MARTIN 102/103 ERNEST D. BUFF AND ASSOCIATES, LLC. FETSUGA, ROBERT M original CHU, KING M