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Knowles Electronics LLC v. Iancu

Knowles Electronics LLC v. Iancu, F.3d, 2018 WL 1659777 (Fed. Cir. Apr. 6, 2018) (Newman (dissenting), Clevenger, WALLACH) (PTAB) (3 of 5 stars)

Fed Cir affirms IPRx determination of anticipation/obviousness. The Fed Cir has jurisdiction notwithstanding the decision of the third-party requestor not to defend the decision in its favor. 35 U.S.C. § 143 and Cuozzo, 136 S. Ct. 2131 (2016), permit the PTO to intervene in judicial proceedings to defend decisions of the Board. The Board did not err in its claim construction. The PTAB properly considered a judicial interpretation of similar claims in a previous Federal Circuit opinion, and adopted a construction “nearly identical” to that interpretation; the adjustments were appropriate given the distinctions between claims. The PTAB also did not rely on a new ground of rejection in its motivation to combine analysis. Though it used “slightly different verbiage” than the Examiner, the same basic reasons applied. “Moreover, Knowles has had a fair opportunity to respond to this rejection, which is the ‘ultimate criterion’ for finding no new ground of rejection.” Op. at 15 (quoting Leithem, 661 F.3d 1316, 1319 (Fed. Cir. 2011)).

Dissent: Judge Newman would have dismissed for lack of standing. “[I]n the rare situation where there is no remaining appellee and the intervenor has asserted no injury to itself, the intervenor of right does not have independent standing to continue in the litigation.” Dissent at 2.

KEYWORDS: STANDING; INTER PARTES REEXAMINATION; OBVIOUSNESS (YES); ANTICIPATION (YES); CLAIM CONSTRUCTION