{"id":11602,"date":"2021-07-20T11:09:54","date_gmt":"2021-07-20T17:09:54","guid":{"rendered":"https:\/\/www.717madisonplace.com\/?p=11602"},"modified":"2021-07-20T11:23:59","modified_gmt":"2021-07-20T17:23:59","slug":"oral-argument-of-the-day-in-re-kirilichen","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=11602","title":{"rendered":"Oral argument of the day: In re Kirilichen"},"content":{"rendered":"\n

The oral argument of the day is from today’s opinion in In re Kirilichen<\/em>. The Federal Circuit wrote:<\/p>\n\n\n\n

We are unable to discern the agency\u2019s basis for reject- ing Appellants\u2019 teaching-away arguments (or whether the issue was addressed at all). The Director seems to suggest that the Board resolved this issue by finding \u201cthat the claimed invention, Rothstein, and Lee all employ tapering.\u201d Appellee\u2019s Br. 10; see Board Decision<\/em>, 2020 WL 5231917, at *4 (reasoning that Appellants\u2019 arguments regarding the \u201ctapering\u201d of Lee\u2019s components were unpersuasive because \u201cRothstein[\u2019s], Lee[\u2019s], and Appellant[s\u2019] devices all rely on tapering\u201d). We disagree that the Board (or the examiner) sufficiently addressed Appellants\u2019 teaching-away argu- ments. First, the examiner\u2019s findings with respect to Lee were limited to general preassembly by press fitting\u2014the examiner stated that \u201cthe only <\/em>teaching . . . gleaned from the disclosure of Lee is that it is known to be advantageous to press fittingly pre-assemble two components of a sealing insert.\u201d J.A. 526 (emphasis in original). Second, the Board\u2019s decision makes no mention of teaching away, and the Board\u2019s generic statement that each of the three de- vices relies on tapering falls short of \u201csetting out [the Board\u2019s] reasoning in sufficient detail to permit meaningful appellate review\u201d of the teaching-away issue. See Power Integrations, Inc. v. Lee<\/em>, 797 F.3d 1318, 1327 (Fed. Cir. 2015). And \u201cwhether a reference teaches away from the claimed invention\u201d is a \u201cquestion[] of fact,\u201d Meiresonne v. Google, Inc.<\/em>, 849 F.3d 1379, 1382 (Fed. Cir. 2017), that is not for us to decide in the first instance in this appeal, con- trary to the Director\u2019s suggestion that we do so, see <\/em>Appel- lee\u2019s Br. 16\u201318 (arguing for a finding that Lee \u201cdoes not teach away\u201d).<\/p>In re Kirilichen<\/em>, 2021-1168 (Fed. Cir. July 20, 2021).<\/cite><\/blockquote>\n\n\n\n

Here are a couple of interesting sound bites from the oral argument; Chief Judge Moore’s questions to the Appellant and to the Office, respectively, sum up the ultimate decision that the court rendered.<\/p>\n\n\n\n