The patent, held by Smith & Nephew and Covidien, claims priority to an earlier-filed PCT application by the same inventor with near identical specifications, according to court documents.
The US Patent Trial and Appeal Board previously ruled that an earlier filed PCT application from Smith & Nephew had sufficient description to make it a priority document instead of invalidating obviousness references, and the Court of Appeals affirmed this decision.
“We have reviewed Hologic’s remaining arguments and find them unpersuasive. For the reasons above, we affirm the Board’s finding that Emanuel PCT provides written description support for claims 1–3 and 5–7 of the ’359 patent and that the ’359 patent is entitled to claim priority to Emanuel PCT. Accordingly, we affirm the Board’s finding that Emanuel PCT is not prior art to the ’359 patent under pre-AIA Section 102(b). We also affirm the Board’s reversal of the examiner’s corresponding obviousness rejection,” Judges Newman, Wallach and Still wrote in their decision.