Tuesday, February 24, 2015

Next step after GVR in Gevo case?

As to the GVR in Shire, the pharmapatentsblog noted:


the Supreme Court held that “the ‘evidentiary underpinnings’ of claim construction … must be reviewed for clear error on appeal.” But, the Court also stated:

As all parties agree, when the district court reviews only evidence intrinsic to the patent (the patent claims and speci­fications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo.

Since the claim construction in Shire appears to have been based only on intrinsic evidence, the Federal Circuit’s original analysis was fully consistent with the new guidance provided in Teva v. Sandoz.Thus, the court should not have to revisit its analysis or disturb its previous findings when it rehears the case on remand.

This thinking may be relevant to thinking in Gevo / Butamax. Note what green patents blog wrote:


Gevo petitioned to the U.S. Supreme Court to hear the case, and in a single, swift decision known as a GVR, the Supremes granted the petition, vacated the Federal Circuit decision, and remanded for further proceedings. Grant-Vacate-Remand, hence GVR (read a blurb on the decision and GVR at the Patently-O blog here).

The Federal Circuit must now reconsider this case in light of the Supreme Court’s recent Teva Pharmaceuticals decision, which raised the standard for appellate review of district court factual determinations in patent claim construction rulings.

Previously, the Court of Appeals for the Federal Circuit used a “de novo” standard, which meant it could take a fresh look at the evidence on claim construction and make its own determination, which led to a high reversal rate. After Teva, the Federal Circuit can reverse only where it finds “clear error” in the district court’s consideration of the facts in a claim construction decision.

So the yo-yo, in this thread of the patent war at least, swings back to Gevo with Butamax’s victory wiped out for the moment (see Gevo’s patent PR on the GVR decision here).


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