Today in Merck & Cie v. Gnosis S.P.A., __ F.3d __ (Fed. Cir. 2016)(den. reh’g en banc)(Newman, J., dissenting) and South Alabama Medical Science Foundation v. Gnosis S.P.A., __ F.3d __ (Fed. Cir. 2016)(den. reh’g en banc)(Newman, J., dissenting), the Great Dissenter once again set a new cumulative record for patent law dissents:

She unsuccessfully argued that the “substantial evidence” test should not be applied in post-grant proceedings at the PTAB under the new post grant review proceedings of the Leahy Smith America Invents Act.

It’s Up to Congress to Act:  In each case an opinion was filed by O’Malley, J., joined by Wallach, Stoll JJ., concurring in the denial of the petition for rehearing en banc. She said that the “substantial evidence” test may well be bad policy but it is up to Congress to rectify the situation.

Copies of the opinions are attached to the pdf version of this note.

MerckSubstantialEvidence

Regards,
Hal