With 2015 nearly over, and the legal press grappling with the biggest and most impactful intellectual property developments of the year, we asked our panel of IP experts what everyone might have missed.
Question: What was a significant development in IP law that flew under the radar in 2015?
The significant development in patent law that flew under the radar in 2015 is the increased importance of PTAB decisions in patent prosecution. In Merck & Cie v. Gnosis SPA, the Federal Circuit confirmed the “substantial evidence” standard for review of the factual determinations of the PTAB. Accordingly, the Federal Circuit has affirmed about 90 percent of the PTAB’s decisions in post-grant proceedings. Thus, it is important to review PTAB decisions closely, in light of the strong deference to the PTAB. In the first IPR decision involving biopharmaceutical patents — BioMarin Pharm. Inc. v. Genzyme Therapeutic Prods. LP — the PTAB applied the lower standards of “broadest reasonable interpretation” for claim construction and “preponderance of the evidence” to assess claim validity and held patents directed to methods of treating muscle disease were invalid as obvious.