On April 16, 2018, the USPTO’s Patent Trial and Appeal Board (“Board”) issued a decision in an inter partes review regarding a petition filed by Abiomed, Inc., Abiomed R&D, Inc., and Abiomed Europe GMBH (“Petitioners”). In the decision, the Board denied the institution of the inter partes review, which involved the patentability of claims 9-12 and 14 recited in U.S. Patent No. 7,022,100 (“the ‘100 Patent”). The ‘100 Patent is owned by Maquet Cardiovascular, LLC and is drawn to an intra-vascular blood pump having a guide mechanism. In the decision, the Board denied the institution of the inter partes review because the General Plastic factors weighed against the institution of the inter partes review. In particular, the Board found that the following factors weighed against institution of the inter partes review: (i) the challenged claims share several common limitations to previous claims challenged in other inter partes review petitions, (ii) the Petitioner knew of the newly asserted prior art when it filed a previous inter partes review petition, (iii) the Patent Owner’s preliminary responses from several other proceedings were available to the Petitioner in framing its arguments, and (iv) the Petitioner had a six-month time lapse from the filing of another inter partes review that challenged claims of the ‘100 Patent. The inter partes review remains pending at the Board and is captioned IPR2017-02134.
By: Jacqueline A. DiRamio