Airbus S.A.S. v. Firepass Corp., No. 14-1808 (Fed. Cir. 2015)
Annotate this CaseFirepass owns the 752 patent, directed to using hypoxic compositions for preventing and extinguishing fires and sued Airbus for infringement. Airbus requested inter partes reexamination of the patent, proposing that certain claims were anticipated under 35 U.S.C. 102 by the “Kotliar” patent and by the "Vulnerability Methodology and Protective Measures for Aircraft Fire and Explosion Hazards,” Report. The PTO granted Airbus’s request in part, finding that Kotliar presented a substantial new question of patentability, but that the report did not present a substantial new question. The Examiner ultimately rejected claims 91–94 under 35 U.S.C. 112, for lack of written description. The Board reversed, finding that the claims were supported by an adequate written description, but dismissed Airbus’s cross-appeal relating to the same claims, finding that “the statutory authority for third-party requester appeals is . . . expressly limited to the review of examiner final decisions that are ‘favorable to the patentability’ of a claim," and that “determination of a ‘[l]ack of a substantial new question of patentability is not a favorable decision on patentability.’” The Federal Circuit vacated. Once the Director ordered inter partes reexamination it was section 1.948(a), not a determination of a substantial new question of patentability, that governed the limitations on Airbus’s submission of prior art.
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