Today in Genzyme Therapeutic Products Ltd. Partnership v. Biomarin Pharmaceutical Inc., __ F.3d __ (Fed. Cir. 2016)(Bryson, J.), in the course of an affirmance of an invalidity ruling by the PTAB in an inter partes review, the panel denied the patentee’s procedural challenge that the final PTAB disposition was based on evidence outside that originally presented by the patent challenger:
“The purpose of the trial in an inter partes review proceeding is to give the parties an opportunity to build a record by introducing evidence—not simply to weigh evidence of which the Board is already aware.
“The critical question for compliance with the APA and due process is whether [the patentee] received ‘adequate notice of the issues that would be considered, and ultimately resolved, at that hearing.’ Pub. Serv. Comm’n of Ky. v. FERC, 397 F.3d 1004, 1012 (D.C. Cir. 2005) (Roberts, J.). As to that question, [the patentee] has not shown that the Board’s decisions rested on any factual or legal issues as to which [the patentee] was denied notice or an opportunity to be heard at a meaningful point in the proceedings.”