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CAFC Happenings

By John L. Rogitz of Rogitz & Associates

1. Board of Appeal Briefs

In re Lovin, 2010-1499 holds that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of claim language and a naked assertion that the corresponding elements were not found in the prior art. Thus, even though Appellant had argued the dependent claims at issue under separate headings as required, the Board properly grouped the dependent claims with the rejection of the independent claims. In this case the Appellant had argued the dependent claims only for the first time on appeal and had not replied to an examiner's answer that rebutted the "naked assertion" with a citation to specific parts of the reference that allegedly met the limitations.

2. Doctrine of Equivalents

Duramed Pharmaceuticals, Inc. v. Paddock Laboratories, Inc., 2010-1419 holds that to be a "foreseeable" equivalent barred by Festo from being encompassed under the DOE, the equivalent in question (in this case, a constituent of a claimed composition) need not be shown to have been known for the specific use for which it is recited (in this case, as a moisture barrier coating) particularly when, as here, the claim preamble simply recited "a pharmaceutical compound" and the accused equivalent was known as a constituent in such compounds for other purposes.

3. Baseless Litigation; Sanctions


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