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27 April 2017Americas

Federal Circuit partly remands Duke University and BioMarin dispute

The US Court of Appeals for the Federal Circuit has partly affirmed, partly reversed and partly vacated a dispute between Duke University, based in North Carolina, and biotech company BioMarin Pharmaceutical.

Decided on Tuesday, April 25, the Federal Circuit’s ruling reviewed an inter partes review (IPR) decision in which the Patent Trial and Appeal Board (PTAB) had found that a patent belonging to Duke University was unpatentable.

The patent involved is US number 7,056,712. It’s directed to methods for treating Pompe disease, an inherited disorder caused by the buildup of a complex sugar called glycogen in the body’s cells.

BioMarin had filed an IPR petition of certain claims of the ‘712 patent.

The PTAB instituted review and in February 2015 held that all of the challenged patents were unpatentable as anticipated by US patent number 7,351,410, or obvious.

The board granted Duke University’s request for a rehearing, but despite changes made to previous arguments, a split panel held that claim 19 of the patent was obvious.

In the Federal Circuit’s decision, the court said it agreed with Duke University that the board erred in concluding that claim 19 was unpatentable as obvious and added that substantial evidence does not support the board’s finding.

“We have considered the parties’ remaining arguments, but conclude that they are without merit,” said the Federal Circuit.

The court added: “For the reasons set forth above, we reverse the board’s obviousness determination with respect to claim 19, vacate its obviousness determination with respect to claim 9, reverse its anticipation finding with respect to claim 9, and affirm in all other respects.”

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