Wednesday, April 11, 2018

Merck loses at CAFC in appeal concerning: U.S. Patent Application No. 12/688,034, titled “Use of Folates for the Prevention and Treatment of Vascular Diseases.”

The basis for the challenge:

Merck’s challenge ultimately rests on its contention
that the Board’s reading of van Etten, on which the
Board’s findings of fact rest, is simply unreasonable and
therefore unsupported by substantial evidence. See
TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1061 (Fed.
Cir. 2016) (“Substantial evidence ‘means such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.’”) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938))
. This standard does not
require the Board’s reading of van Etten to be the only
reasonable one for us to uphold it. “[T]he possibility of
drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from
being supported by substantial evidence.” Consolo v. Fed.
Maritime Comm’n, 383 U.S. 607, 620 (1966); see In re
Jolley, 308 F.3d 1317, 1320 (Fed. Cir. 2002) (“If the evidence
in record will support several reasonable but contradictory
conclusions, we will not find the Board’s
decision unsupported by substantial evidence simply
because the Board chose one conclusion over another
plausible alternative.”); AK Steel Corp. v. United States,
192 F.3d 1367, 1371 (Fed. Cir. 1999).

The CAFC did not adopt Merck's view:

We need not and do not decide whether Merck’s view
of what van Etten teaches is the better view. We conclude
only that Merck’s view is not the only reasonable view.
Above we italicized excerpts from van Etten that support
the key findings of the Board. Those excerpts are reasonably
capable of being read as conveying sufficiently positive
implications about the use of folate alone—without
also administering other substances, like serotonin,
related to NO-mediated endothelial-dependent vasomotor
responses—that they would provide a relevant skilled
artisan a motivation to do what claim 35 requires with a
reasonable expectation of success and not leave the artisan
discouraged from doing so by the article as a whole
within the meaning of the “teaching away” principle. See,
e.g., DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
567 F.3d 1314, 1327 (Fed. Cir. 2009).


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