Kubin ruling extends KSR logic to biotech
09 April 2009
Eileen McDermott, New York
The US Court of Appeals for the Federal Circuit last week ruled in a closely watched biotechnology case that an invention relating to the isolation and sequencing of a human gene was “obvious to try”
The case, In re Kubin, stems from an appeal of a 2007 USPTO Board of Patent Appeals and Interferences (BPAI) decision that applied the landmark Supreme Court ruling in KSR v Teleflex, which rejected the Federal Circuit's rigid teaching-suggestion-motivation (TSM) test for obviousness, saying it was inconsistent with an "expansive and flexible approach".
The judgment was viewed as making it easier for defendants to attack patents on the ground that they are obvious and harder for applicants to prove their inventions are not obvious, but has been applied mostly in the mechanical fields.
Citing KSR, a three-judge panel of the Federal Circuit said that the appellants,...
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