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Monsanto Technology LLC v. E.I. DuPont de Nemours & Co.

No Error in IPRx Construction of “About 3% or Less” to Include 4%, Based on Specification

Monsanto Technology LLC v. E.I. DuPont de Nemours & Co., 2018 U.S. App. LEXIS 258 (Fed. Cir. Jan. 5, 2018) (Dyk, Reyna, WALLACH) (PTAB) (2 of 5 stars)

Fed Cir affirms IPRx rejection of claims as anticipated/obvious. Monsanto’s patent related to a process for pairing parent soybean lines to produce seeds with modified fatty acid profile. The PTAB correctly construed the limitation “about 3% or less” (referring to the %/w of linolenic acid) as broad enough to cover a content of 4%. The specification identified as an embodiment a soybean line that, according to a reference cited in the patent itself, had a linolenic acid content of 2.3–4.1%. The opinion rejects Monsanto’s argument that the 4.1% figure was an “outlier” because Monsanto had failed to “identify what qualifies as an ‘outlier’ or cite anything in the intrinsic record contradicting the ‘about 3%’ claim interpretation before us.” Op. at 10. The opinion goes on to find the anticipation and obviousness determinations supported by substantial evidence—including, for one limitation, inherent anticipation. Though the reference did not expressly describe the result of a certain seed line pairing, the resultant line “would necessarily result in progeny within the scope of claim 1.” Id. at 14.

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