Newman, J. On remand from the Supreme Court for reconsideration of the question of patent eligibility under 35 U.S.C. §101 in view of the Supreme Court’s Bilski decision, reversing summary judgment of invalidity for some claims and affirming summary judgment of invalidity for another claim. Also affirming summary judgment of non-infringement for one defendant and vacating as to other defendants. “We conclude that the immunization step moves [some] claims through the coarse filter of §101, while the abstraction of the [other] claim is unrelieved by any movement from principle to application.” Rader, J. expressed additional views in a separate opinion.  Moore, J. dissented and would have affirmed summary judgment of invalidity under §101 for all claims.

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Lourie, J. Reversing summary judgment of invalidity for impermissibly recapturing subject matter and remanding. In the asserted patents, which relate to products for crushing and grinding abrasive materials, the terms “homogenous solid solution” and “homogenous ceramic composite” are synonymous and substitution of one term for the other during reissue examination did not broaden the claims.

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Linn, J. Affirming rejection of claims due to indefiniteness and remanding. The patent failed to disclose structure corresponding to the means-plus-function limitation, “reverse logistics means for generating transfer data.” The Board rejected the claims as anticipated. The Court rejected the claims on the alternative ground of indefiniteness and remanded to afford the applicant the same opportunity it would have had, to amend its claims or submit new evidence, if the Board’s rejection had been based on indefiniteness. Newman, J. dissented.

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Rader, J. Affirming denial of JMOL on non-infringement and reversing denial of JMOL on validity for patents related to curing tobacco.  Also affirming evidentiary rulings. “Because inequitable conduct was not at issue in the trial, this court finds the presentation of the [slide] troubling.  The [slide], showing a shadowy figure conspicuously holding a piece of paper behind his back, does not support any claim at issue in this case. As a practical matter, however, [patent owner] did not show the presentation of the [slide] affected its substantive rights. Accordingly, this court detects no abuse of discretion in the trial court’s evidentiary decisions.” Regarding validity, as confirmed by reexamination proceeding, the claims were supported by a provisional application. The claims were neither anticipated nor obvious. The majority also found that the claim term “controlled environment” is “not insolubly ambiguous and is not indefinite.” Dyk, J. concurred in part and dissented in part and would have found the patents invalid for indefiniteness.

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Rader, J. Affirming summary judgment of non-obviousness of patent related to nasal spray for treating postmenopausal osteoporosis. Also upholding denial of defendant’s motions to (a) breach the attorney-client privilege under the crime-fraud exception and (b) add counterclaims and defenses. The “Amended Complaint did not change the scope of the original Complaint and therefore did not provide an opportunity for [defendant] to expand the breadth of its affirmative defenses or counterclaims.”

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Bryson, J. Affirming dismissal of antitrust claims due to failure to plead a plausible market. Also reversing dismissal of other claims and remanding. The “waiver of sovereign immunity in section 702 [of the Administrative Procedure Act] is broad enough to allow [declaratory judgment plaintiff] to pursue equitable relief against the [patent owner, the United States Department of Agriculture] on its patent law claims.”

WilmerHale represented defendant-appellee, The California Table Grape Commission.

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Lourie, J. Affirming dismissal due to lack of an interference in fact for patents related to a blood-clotting protein. Dyk, J. concurred in part and dissented in part.

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