CAFC tackles evidentiary issues in IPRs in Ariosa case

In ARIOSA DIAGNOSTICS v, VERINATA HEALTH, INC., the IPR petitioner-appellant ARIOSA DIAGNOSTICS convinced the CAFC to vacate a decision of PTAB, costing the patentee a finding of nonobviousness:


For the foregoing reasons, we vacate the Board’s find-
ing of nonobviousness and remand.



The issue is "how much" consideration PTAB placed on Exhibit 1010:


Here, we cannot confidently discern whether the
Board, in its consideration of Exhibit 1010,
was actually relying on a legally proper ground rather
than the errone-
ous ground just noted.
The Board might have been saying
only that the
development of the argument invoking
Exhibit 1010 in the Petitions was not adequate.


AND





Yet the Board did not sufficiently articulate the fore-
going grounds for its rejection of Ariosa’s reliance on
Exhibit 1010 or other grounds independent of the incor-
rect ground suggested by the Board’s language.
Perhaps the Board could have done so. But it did not, and we
cannot do so for the Board
where, as here, the matter is
not purely legal.


link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1215.Opinion.11-12-2015.1.PDF