GUANGDONG ALISON loses appeal at CAFC

The outcome:


Alison appeals the
Commission’s final determination that certain claims of
the ’359 patent are not indefinite based on their use of the
term “lofty . . . batting.” Alison also challenges the Commission’s
final determination that certain claims of the
’359 patent are not invalid on anticipation and obviousness
grounds. Because the written description of the ’359 patent
informs the meaning of “lofty . . . batting” with reasonable
certainty, we affirm the Commission on the indefiniteness
ground. And because we conclude that the Commission’s
factual findings are supported by substantial evidence, we
also affirm the Commission on the anticipation ground
without reaching the subsidiary obviousness ground.



Of interest:


We now turn to the Commission’s anticipation and obviousness determinations. The Commission affirmed the
ALJ’s initial determination that claims 1, 7, and 9 of the
’359 patent are not anticipated by Ramamurthi. The Commission also affirmed the ALJ’s separate determination
that claim 9 is not anticipated by and would not have been
obvious over Ramamurthi. We affirm the Commission on
the anticipation ground without reaching the subsidiary
obviousness ground.

(...)

We are not persuaded that the Commission’s determination is unsupported by substantial evidence.
Substantial evidence review must be guided by the applicable
substantive evidentiary standard. See Checkpoint Sys.,
54 F.3d at 761 n.5. Here, Alison bore the elevated burden
of clearly and convincingly proving that the “glass wool” or
another fiber of Ramamurthi necessarily presents the properties of a “lofty . . . batting.”
See Rosco, 304 F.3d at 1380;
see also Motorola Mobility, LLC v. Int’l Trade Comm’n,
737 F.3d 1345, 1350 (Fed. Cir. 2013) (holding that “substantial evidence supports the Commission’s conclusion
that Motorola did not present clear and convincing evidence that the operating system necessarily required any
additional capacity”). The ’359 patent itself expressly discusses and distinguishes Ramamurthi,
which was also considered by the patent examiner during prosecution and
later by the Board in denying Alison’s IPR petition. Arguments and references already considered by the Patent Office may carry less weight with the fact finder. Sciele
Pharma Inc. v. Lupin Ltd., 684 F.3d 1253, 1260 (Fed. Cir.
2012). Aspen’s expert, furthermore, rebutted Alison’s expert testimony with detailed testimony supported by industry references.5 Alison’s expert, for his part, merely
presented a photo of glass wool pulled from a Wikipedia
article, which he identified as lofty without any supporting
analysis or testing.

(...)

The Commission also affirmed the ALJ’s separate determination that claim 9 is not anticipated by and would
not have been obvious over Ramamurthi. Claim 9 depends
from claim 1 and additionally recites a specific range of dopant that the parties agree is not expressly disclosed in
Ramamurthi. On appeal, Alison asserts that the recited
range is inherently disclosed by or would have been obvious
over Ramamurthi’s disclosure. Because we affirm the
Commission’s determination that the “lofty . . . batting”
limitation of claim 1 is not expressly or inherently disclosed
by Ramamurthi, we need not reach this separate ground
for claim 9.