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PTAB Issues First Post-Grant Review Final Written Decisions
June 14, 2016

On June 13, 2016, the Patent Trial and Appeal Board (“PTAB”) issued first ever final written decisions out of post grant review proceedings.  Post grant review is available only for patents stemming from applications filed on or after March 16, 2013.  Post grant review petitions must be filed within nine (9) months from the issuance of eligible patents.  Inter partes review is available outside of the nine (9) month window. 

The final written decisions resulted from two post grant review proceedings involving the same parties.  In the first post grant review proceeding filed by American Simmental Association (Case PGR2015-00003), the PTAB found claims 1-20 of U.S. Patent No. 8,660,888 (“the ’888 patent”) unpatentable.  The ’888 patent is directed to generic quality and relative market value of livestock.  In the first final written decision, the PTAB discussed eligibility of the ’888 patent for post-grant review.  As to the grounds of unpatentability, the PTAB discussed the parties’ arguments under 35 U.S.C. §§ 101 and 103 and found claims 1-20 unpatentable.    

In the second post grant review proceeding filed by the same petitioner (Case PGR2015-00005),  the PTAB also found claims 1-20 of U.S. Patent No. 8,725,557 (“the ’557 patent”) unpatentable under 35 U.S.C. §§ 101 and 103.  The ’557 patent is related to the ’888 patent and shares the same disclosure with the ’888 patent.

In both proceedings, the PTAB denied Patent Owner, Leachman Cattle of Colorado, LLC’s motions to amend and dismissed Patent Owner’s motions to exclude moot.

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Additional information about post-grant proceedings can be found on our Post-Grant Patent practice group page.