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Secondary Considerations Win Again, PTAB Litigation Blog

September 2017


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As we have previously discussed (on February 1, March 1, March 30, and May 19), reliance on secondary considerations of non-obviousness has been hit or miss for patent owners trying to convince PTAB panels that the secondary considerations outweigh a prima facie case of obviousness. As with the decision discussed on May 19, the patent owner in Xactware Solutions, Inc. v. Eagle View Techs., Inc., IPR2016-00592 (Paper 50) (PTAB August 25, 2017), successfully relied on secondary considerations to overcome the prior art. The PTAB found that the prior art disclosed the claim limitations, but ultimately concluded that Patent Owner’s secondary considerations were decisive. The PTAB provided thoughtful analysis regarding the issues of nexus and commercial success.

Read the full article at ptablitigationblog.com.

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