Precedential Federal Circuit Opinions

1. BIO-RAD LABORATORIES, INC. v. INTERNATIONAL TRADE COMMISSION [OPINION] (2020-1475, 2020-1605, May 28, 2021) (Newman, Lourie, Dyk) 
   Lourie, J. Affirming the decision of the International Trade Commission relating to Complainant’s allegations that Respondent violated 19 U.S.C. § 1337 by importing into the United States certain microfluidic chips. With respect to Complainant’s appeal, the ALJ’s findings reflected a correct determination that, while the term “sample” was defined broadly in the patent, the definition of “sample” was not so broad as to include reagents. With respect to Respondent’s appeal, the ALJ correctly construed the term “droplet generation region” to mean a location on the chip where a network of channels intersects or meets, and nothing justified imposing a requirement that a channel extend directly from the sample well to the droplet-generation region. Additionally, substantial evidence supported the Commission’s findings regarding indirect infringement, given that the named inventors of the asserted patents sold their company and patent rights to Complainant, worked for Complainant for a short time, left Complainant to start a new company, and launched new products that have been determined to infringe the patents they assigned to Complainant.
2. BECTON, DICKINSON AND COMPANY v. BAXTER CORPORATION ENGLEWOOD [OPINION] (2020-1937, May 28, 2021) (Prost, Clevenger, Dyk)* 
   Dyk, J. Reversing decision of the Patent Trial and Appeal Board determining that certain claims of the patent-at-issue were not invalid as obvious. The Board found persuasive Patent Owner’s argument that one of the references only discussed that a remote pharmacist “may” verify each step; not that the remote pharmacist “must” verify each and every step before the operator is allowed to proceed. But it was quite clear from context that “may” does not mean “occasionally,” but rather that one “may” choose to systematically check each step. With respect to the only remaining missing element, the Board erred in looking to the specific prior art reference as the only source a person of ordinary skill would consider, given that a person of ordinary skill is also a person of ordinary creativity. Patent Owner did not meaningfully argue that the weak showing of secondary considerations could overcome the showing of obviousness. Patent Owner also argued that the Board erred in determining that one of the references qualified as “prior art” under 35 U.S.C. § 102(e)(2) (pre-AIA), because all claims of that reference were cancelled following inter partes review. The text of the statute requires only that the patent be “granted,” meaning the “grant[]” has occurred. The statute does not require that the patent be currently valid.
   *WilmerHale represented Becton Dickinson.