November 2012

Spotlight Info

In Flo Healthcare Solutions, LLC v. Kappos, No. 11-1476 (Fed. Cir. Oct. 23, 2012), the Federal Circuit affirmed the Board’s conclusion on inter partes reexamination that certain patent claims were obvious, but corrected the Board’s analysis by not construing the disputed claims as means-plus-function limitations under 35 U.S.C. § 112, ¶ 6.  In his Additional Views, Judge Plager stated that the Court “appear[s] to have two contradictory lines of authority on the question of how [it] reviews Board claim constructions—a deferential ‘reasonable’ (arbitrary/capricious-type) review, and a no-deference ‘pure’ law type review.”  Plager Additional Views at 4.  Judge Plager contended that “[w]hichever way this court’s review rule should be cast, and for whatever reasons, it is perhaps time that the court definitely decide en banc on an agreed review standard, one that provides clear direction to the PTO and the inventor community.”  Id. at 9.  See this month’s edition of Last Month at the Federal Circuit for a full summary of this decision.