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Airbus S.A.S. v. Firepass Corp.

Analyzing “Reasonable Pertinence” Requires Considering Tendered Evidence of PHOSITA’s Perspective

Airbus S.A.S. v. Firepass Corp., __ F.3d __, 2019 WL ___ (Fed. Cir. Nov. 8, 2019) (Lourie, Moore, STOLL) (PTAB) (2 of 5 stars)

Fed Cir vacates PTAB’s reversal, in IPRx, of the examiner’s rejection of Firepass’s new claims. Firepass’s patent relates to fire suppression using breathable air rather than water, foam, or toxic chemicals. The PTAB erred in its determination that a reference advanced by Airbus was not analogous art. The record had sufficient evidence to support the Board’s determination that the reference was not within the same field of endeavor as the new claims. But as to the question of whether the reference was nevertheless “reasonably pertinent” per Wood, 599 F.2d 1032 (C.C.P.A. 1979), the Board erred by refusing to consider other references (which were within the claims’ field of endeavor) that might have linked the reference under review with the claims. “In order to determine whether a reference is ‘reasonably pertinent,’ [ ] a factfinder should consider record evidence cited by the parties to demonstrate the knowledge and perspective of a person of ordinary skill in the art at the time of the invention,” Op. at 15, and the opinion cites Randall Manufacturing, 733 F.3d 1355 (Fed. Cir. 2013) as instructive. That Randall addressed motivation to combine, and not analogous art, was not a basis for distinction because both are “factual inquiries underpinning an obviousness determination that take into account the knowledge and perspective of an ordinarily skilled artisan.” Op. at 17.

KEYWORDS: INTER PARTES REEXAMINATION; ANALOGOUS ART; OBVIOUSNESS