By Gregory S. DeLassus, Associate
The Patent Trial and Appeal Board is affirmed far more often than it is reversed at the Federal Circuit, and arguments about procedural defects with the PTAB process have proven particularly unsuccessful. However, arguments about the burden of production might well be an exception to the general rule about the infirmity of procedural arguments. This point is neatly illustrated in two recent cases: In re Natural Alternatives LLC, No. 15-1911 (Fed. Cir. Aug. 31, 2016); and Dynamic Drinkware v. National Graphics Inc., 800 F.3d 1375 (Fed. Cir. 2015).
Natural Alternatives (NA) owns US 6,080,330 (‘330), which claims compositions for deicing roads using less salt and fewer toxic chemicals than have traditionally been used for that purpose. One of NA’s licensees challenged ‘330 in ex parte re-examination. The examiner rejected all claims as obvious and the PTAB affirmed. NA appealed to the Federal Circuit.