Fresh From the Bench: Latest Federal Circuit Court Cases

CASE OF THE WEEK

Natural Alternatives International, Inc. v. Iancu, Appeal No. 2017-1962 (Fed. Cir. Oct. 1, 2018)

In an appeal from an inter partes reexamination, the Federal Circuit affirmed the Board’s determination that the challenged claims were anticipated by or obvious over cited prior art.  The claims were directed to increasing athletes’ endurance.

Natural Alternatives International, Inc. (“NAI”) filed a chain of eight patent applications, the earliest of which had a 1997 priority date. Each of the continuing applications included a priority benefit statement under 35 U.S.C. § 120, claiming priority to the first application.  On November 18, 2003, NAI filed the fifth application, a continuation-in-part, that claimed priority to the first four applications and a 2003 provisional application.  While the fifth application was pending, NAI filed its sixth application on August 29, 2008, claiming priority through the fifth application back to the filing date of the 1997 parent application.  However, on September 2, 2008—just four days after filing the sixth application—NAI amended the fifth application to delete priority claims to the first four applications. Thus, while the fifth application only claimed priority to a 2003 provisional application, the sixth through eighth applications still claimed priority through the fifth application to the 1997 priority date.

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Written by: Scott Eads and Nika F. Aldrich, Schwabe, Williamson & Wyatt

Contributor: Angela Addae