Wednesday, August 22, 2018

In Align Technology, CAFC finds no substantial evidence from PTAB or appellee ClearCorrect

The outcome:

Align Technology, Inc., owns U.S. Patent No.
6,699,037. In an inter partes review requested by
ClearCorrect Operating, LLC, the Patent Trial and Appeal
Board determined that claims 1, 2, 9, and 10 are
unpatentable. The Board’s determination rested on its
findings regarding the key prior art, U.S. Patent No.
6,068,482 (Snow), as teaching certain claim elements and
the motivation of a skilled artisan to combine that reference
with others. Neither the Board’s decision nor
ClearCorrect’s brief on appeal reveals substantial evidence
in support of those findings. We vacate the Board’s
final written decision and remand the matter for further
proceedings consistent with this opinion. We affirm the
Board on the one issue of claim construction presented to

Of substantial evidence:

Whether ClearCorrect has demonstrated a motivation to combine
the identified prior art references is an underlying question
of fact that we review for substantial evidence support.
See Redline Detection, LLC v. Star Envirotech, Inc.,
811 F.3d 435, 449 (Fed. Cir. 2015). “Substantial evidence
review asks ‘whether a reasonable fact finder could have
arrived at the agency’s decision’ and requires examination
of the ‘record as a whole, taking into account evidence
that both justifies and detracts from an agency’s decision.’”
Intelligent Bio-Sys., Inc. v. Illumina Cambridge
Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016).

The CAFC addresses both the PTAB decision and arguments
made in ClearCorrect's brief:

Neither the Board’s decision nor ClearCorrect’s brief
identifies how, contrary to Align’s arguments, Snow
teaches an individualized final tooth arrangement. They
do not provide answers to Align’s key contentions as to
Snow’s failure to teach the standard model (or some
modified version of the standard model) as a final tooth
arrangement for an individual patient. And they do not
show support for understanding Snow to teach that one of
the intermediate stages in Snow is a final tooth arrangement
for an individual patient.


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