The Federal Circuit yesterday reversed a district court’s refusal to grant judgment as a matter of law on a counterclaim of invalidity for obviousness.  Relying principally on its own 1988 precedent, the court held that prior art made the patents obvious under KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007).  The court also affirmed judgment of non-infringement as a matter of law, upholding the district court’s overruling of the jury’s contrary verdict.  PharmaStem Therapeutics Inc. v. ViaCell Inc. , No. 05-1490 (Fed. Cir. July 9, 2007).

The decision represents the third time, by Blawlgetter’s count, that the Federal Circuit has held a patent invalid for obviousness post-KSR without conceding that KSR made a difference in the outcome.

Barry Barnett

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