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Federal Circuit declines to consider constitutionality of BPAI judge appointments, affirms rejection

By McKee, Voorhees & Sease, P.L.C.

In a decision this week, the Federal Circuit decided a case involving both obviousness and the Appointments Clause relating to allegedly unconstitutional appointment of members of the Board of Patent Appeals and Interferences.  The court determined that appellants failed to timely raise the issue of the constitutionality of the Appointments Clause by not presenting it to the Board, and therefore waived the issue on appeal.  

On the merits, the court agreed there was a substantial new question of patentability and therefore reexamination was properly granted.  The court also agreed with the Board that the evidence of commercial success did not rebut the prima facie case of obviousness, as there was no evidence that the commercial success was the "driving force" behind the sales of the patented product.  Accordingly, the court affirmed the rejection of the claims.

More on In re DBC after the jump.

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Full post as published by FileWrapper on November 06, 2008 (boomark / email).