"[W]hen the patented invention is the result of the work of joint inventors, the portions of the reference disclosure relied upon must reflect the collective work of the same inventive entity identified in the patent to be excluded as prior art." - Federal Circuit The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision on Thursday,"
"Merck Serono appealed two decisions of the Patent Trial and Appeal Board (PTAB) holding claims of Merck's U.S. Patent Nos. 7,713,947 and 8,377,903 unpatentable in inter partes review (IPR) proceedings brought by Hopewell Pharma Ventures. The Board found the claims unpatentable as obvious over a combination of two prior art references, "Bodor" and "Stelmasiak". The patents are both titled "Cladribine Regimen for Treating Multiple Sclerosis" and were invented jointly by four named inventors: Drs. De Luca, Ythier, Munafo, and Lopez-Bresnahan."
The Federal Circuit clarified that, under pre-AIA 35 U.S.C. §§ 102(a), (e), when an invention results from joint inventors, portions of a reference relied upon as prior art must reflect the collective work of the same inventive entity. Merck Serono appealed PTAB decisions finding claims of U.S. Patent Nos. 7,713,947 and 8,377,903 unpatentable as obvious over Bodor and Stelmasiak. The patents, titled "Cladribine Regimen for Treating Multiple Sclerosis," were invented by Drs. De Luca, Ythier, Munafo, and Lopez-Bresnahan. Merck argued De Luca contributed inventively to Bodor’s six-line regimen, but the Board found no credible evidence. August 2003 minutes show participation by three named inventors and IVAX team members, including Dr. Dandiker. Bodor’s international application published October 14, 2004, and the patents’ parent applications were filed December 2004.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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