Wednesday, July 28, 2021
After trying to untie the Gordian knot of patent eligibility, it is almost IP comfort food to read a Fed. Cir. decision that deals with obviousness. In Chemours Co. FC, LLC v Daikin Industries, Ltd., Appeal Nos. 2020-1289 and 2020-1290 (Fed. Cir., July 22, 2021) a split panel of Reyna (writing) and Newman (Happy Birthday!) with Dyk dissenting, reversed a PTAB final written decision that a co-polymer useful for coating cables at high extrusion speeds (30 +/- 3 g/10 minutes) is obvious. Claim 1 of U.S. Pat. No. 7,126,609 reads:
“1. A partially-crystalline co-polymer comprising tetrafluoroethylene [TFE],[and] hexafluoropropylene [HFP] in an amount corresponding to a [HFP] index (HPI) of from about 2.8-5.3…and having a melt flow rate of within the range of about 30 +/- 3g/10 min….”
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Chemours Company FC, LLC v. Daikin Industries, Ltd.
, Appeal Nos. 2020-1289, -1290 (Fed. Cir. July 22, 2021)
In this week’s Case of the Week, the Federal Circuit reversed a PTAB decision in consolidated IPRs that two patents were unpatentable as obvious. The Court held that the Board erred in reaching its conclusions both in terms of what the prior art taught and in application of objective indicia of nonobviousness.
This consolidated appeal arises from two IPR decisions filed by Daikin with regard to Chemours’s ’431 patent and ’609 patent. The patents at issue “relate to a polymer with unique properties such that it can be formed at high extrusion speeds while still producing a high-quality coating on the communication cables.” The Board found all challenged claims of the ’431 and ’609 patents to be unpatentable as obvious in light of the Kaulbach patent.