January 2009
Ex Parte Kubin: Board of Patent Appeals and Interferences Applies ‘Obvious to Try’ in Post-KSR Biotechnology AppealBy Warren D. Woessner and Tania A. Shapiro-Barr
For the past 15 years, the PTO has been issuing patents based on its interpretation of Federal Circuit precedent that a previously unknown DNA sequence that encodes a known polypeptide is non-obvious. This precedent, established by the Court of Appeals for the Federal Circuit in In re Bell, and later reaffirmed in In re Deuel, is now being challenged by the Patent Office Board of Patent Appeals and Interferences.
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