{"id":1902,"date":"2018-01-05T10:36:11","date_gmt":"2018-01-05T15:36:11","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=1902"},"modified":"2018-01-08T18:55:51","modified_gmt":"2018-01-08T23:55:51","slug":"about-about-less-than-about-3-includes-4","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=1902","title":{"rendered":"About “About”: “Less Than About 3%” Includes 4%"},"content":{"rendered":"

In\u00a0Monsanto Technology LLC v. E.I. DuPont De Nemours & Co.<\/a>, [2017-1032] (January 5, 2018), the Federal Circuit affirmed the PTAB’s decision that affirmed reexamination examiner\u2019s rejection of claims of U.S.\u00a0Patent No. 7,790,953, on Soybean Seed and Oil Compositions and
\nMethods of Making Same as anticipated by or obvious from U.S.\u00a0Patent No. 6,426,448.<\/p>\n

Monsanto argued that\u00a0misconstruing the Board misconstrued the \u201cabout 3% or less\u201d limitation in the\u00a0\u2019953 patent to include progeny with a linolenic acid content\u00a0of 4%, but the Federal Circuit found that the PTAB \u201creasonably interpreted\u201d Booth\u2019s parent\u00a0line containing 4% linolenic acid \u201cto be within the scope of\u00a0\u2018about 3%,\u2019\u201d as recited in claim 1 step (a).\u00a0 The Federal Circuit found that the\u00a0claim language was not instructive, so it turned to the\u00a0the remainder of the specification.\u00a0 The Federal Circuit noted that Exhibit 9, which purportedly had a linolenic acid content of about 3%, which included a reference that disclosed\u00a0linolenic acid contents from 2.3% to 4.1%.\u00a0 Thus the Federal Circuit found that the intrinsic evidence supported\u00a0finding that a person having ordinary skill in the art\u00a0would reasonably consider \u201cabout 3%\u201d to\u00a0encompass a range that includes 4%, and that Monsanto’s counterarguments were “unavailing.”<\/p>\n

Monsanto further argued that the finding of anticipation was not supported by substantial evidence because the anticipation was not inherent, as the PTAB found.\u00a0 The Federal Circuit disagreed, saying that inherent anticipation applies because the prior art “necessarily include the unstated limitation.”\u00a0 Declarations in the record confirmed that the\u00a0generation identified in the prior art would necessarily\u00a0result in progeny within the scope of claim 1. Monsanto challenged the PTAB’s reliance on this\u00a0\u201cnon-prior art data\u201d and \u201csecret data\u201d in the declarations, but the Federal Circuit found this was appropriate, saying that\u00a0Monsanto was confusing prior art with extrinsic evidence used\u00a0to support what is \u201cnecessarily present\u201d in a prior art\u2019s\u00a0teaching. Extrinsic evidence may be used to interpret\u00a0the allegedly anticipating reference and to shed light on\u00a0what it would have meant to\u00a0a person of ordinary skill in the art. The Federal Circuit said that the\u00a0declarations did not expand the
\nmeaning of reference or serve as prior art: they demonstrate
\nwhat is inherent in the disclosure.\u00a0 Second the declarations were not\u00a0improper\u00a0\u201csecret data\u201d — the were not used as prior art , but merely in support of prior art already of record.\u00a0 Third, the Federal Circuit offered no rebuttal evidence to the declarations.<\/p>\n

The Federal Circuit further affirmed the obviousness determination, noting that PTAB did not rely solely on its finding of inherent anticipation, but explained that\u00a0explained that a\u00a0PHOSITA would have been motivated to modify the reference to meet the requirements of the claims.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In\u00a0Monsanto Technology LLC v. E.I. DuPont De Nemours & Co., [2017-1032] (January 5, 2018), the Federal Circuit affirmed the PTAB’s decision that affirmed reexamination examiner\u2019s rejection of claims of U.S.\u00a0Patent No. 7,790,953, on Soybean Seed and Oil Compositions and Methods … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[42,7,12],"tags":[],"class_list":["post-1902","post","type-post","status-publish","format-standard","hentry","category-anticipation","category-claim-constructino","category-obviousness"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1902","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1902"}],"version-history":[{"count":1,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1902\/revisions"}],"predecessor-version":[{"id":1903,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1902\/revisions\/1903"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1902"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1902"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1902"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}