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Soft Gel Technologies, Inc. v. Jarrow Formulas, Inc.

“Reasonable Expectation of Success” Does Not Require Certainty

Soft Gel Technologies, Inc. v. Jarrow Formulas, Inc., (Fed. Cir. July 26, 2017) (Prost, BRYSON, Hughes) (PTAB) (2 of 5 stars)

Fed Cir affirms IPRx obviousness determinations. The opinion is mostly fact-oriented, and rejects Soft Gel’s arguments as to the content of the record. In rejecting Soft Gel’s argument that a person of skill would not have had a reasonable expectation of success in combining various aspects of the references, the opinion notes that the law does not require “absolute predictability.” A reference suggesting that one dissolve a certain compound (“CoQ10”) in lemon oil was sufficient to support a reasonable expectation of success in dissolving CoQ10 in d-limonene (a major constituent of lemon oil).

KEYWORDS: INTER PARTES REEXAMINATION; OBVIOUSNESS (YES); REASONABLE EXPECTATION OF SUCCESS (YES)