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6 June 2018Patents

Federal Circuit sends microwave radiation case back to PTAB

The US Court of Appeals for the Federal Circuit has returned a patent dispute over microwave radiation to the Patent Trial and Appeal Board (PTAB), in a precedential decision.

On Friday, June 1, the court vacated the PTAB’s finding of obviousness because it “failed to consider arguments in applicants’ reply brief that were properly made” in response to the examiner’s answer during an appeal at the board.

Three inventors, collectively referred to as Durance, had filed US patent number 12/682,989 in 2010. The patent is directed to improved methods and apparatuses for “microwave vacuum-drying of organic materials, such as food products and medicinal plants”, according to the court.

“It describes dehydrating organic material, such as fruits and berries, by placing the material in a container, transferring the container to a vacuum chamber, and rotating the container as it moves through the vacuum chamber while applying microwave radiation to the organic material,” the court added.

In September 2014, a US Patent and Trademark Office examiner rejected all the claims, citing obviousness, a failure to meet the written description requirement, and lack of enablement.

Durance then filed an amendment by adding language to one of the claims, in order to overcome the rejection. It also asked the office to reconsider the decision.

In December 2014, following discussions with Durance’s attorney, the examiner withdrew her rejection but only for failure to meet the written description requirement and lack of enablement. The examiner maintained her obviousness rejection and also rejected the request for reconsideration.

After Durance appealed to the PTAB, the board backed the examiner’s finding of obviousness after considering the examiner’s answer to Durance’s appeal. The Federal Circuit noted that the board had disregarded Durance’s brief.

Durance then sought a rehearing from the PTAB, arguing it had “erroneously ignored” the brief.

The PTAB denied the rehearing request, prompting a further appeal to the Federal Circuit. The appeals court has now found that the board should have considered Durance’s arguments, and vacated and remanded the decision.

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