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BCLP Partners Cory Smith and George Chen authored an article published May 24 in Law360 concerning a recent decision by the U.S. Court of Appeals for the Federal Circuit — Almirall LLC v. Amneal Pharmaceuticals LLC — clarifying that the presumption of obviousness that applies to overlapping ranges of a patent claim and the prior art does not shift the burden of persuasion to the patentee to prove nonobviousness. “The disclosed range of a substitution in the prior art can result in a finding of obviousness of an overlapping range in the patent claim when the rationale for the substitution goes beyond mere design choice and rises to the level of predictable design choice,” they wrote. “Finally, the same Federal Circuit decision also illustrates how negative limitations in a patent claim can be deemed taught by the prior art despite the prior art not expressly mentioning the relevant feature's absence.”

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