Wednesday, January 11, 2012

Celsis v. Cellzdirect: “Revisionist history is unpersuasive," but dissent raises issues in obviousness, preliminary injunction

From the CAFC decision:

Here, the district court found that the LTC expert’s “revisionist history is unpersuasive.” Hr’g Tr. 10:7-8; see also Hr’g Tr. 7:11-13 (“Instead of a more candid ‘Why didn’t I think of that,’ we get [LTC arguing] ‘Anybody reasonably skilled in the art would have thought of that.’”).


The district court found that LTC’s experts did not predict the results of the claimed methods at the time of the invention, nor could they find any reference in the prior art suggesting that any other scien- tist had. Hr’g Tr. 7:23-8:1 (“That was not the subject of numerous articles authored or assembled by Dr. Li or Dr. Gupta or by any of the other scientists who participated in the consortium about which Dr. Li testified, or for that matter by anybody else.”).

Of evidence:

Celsis offered testimony from its expert Mark Peter- son on irreparable harm. In contrast, LTC did not offer expert testimony in rebuttal. This court sees no error in the district court’s reliance on Celsis’ unrebutted expert testimony. To substantiate its claims, Celsis presented fact and expert testimony as well as specific financial records.


The general rule is that this court does not consider argu- ments not raised below. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). This court finds no reason to disregard that rule here.

The dissent noted:

In other words, Celsis’ invention uses two known techniques, repeats them, and happens to obtain 70 percent viability of hepatocytes. This “invention” is a “patent for a combination which only unites old elements with no change in their respective functions [and] obvi- ously withdraws what already is known into the field of its monopoly,” Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152-153 (1950), which is a “principal reason” for finding a patent obvious. KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Repeating known steps to obtain a desired result is not inventive. Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1330-31 (Fed. Cir. 2009) (finding obvious a claimed inven- tion that required performance of three steps known in the prior art, followed by repetition of those steps until a desired result was obtained).


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