Dyk was on the panel that upheld an obviousness decision for generics in a diabetes drug case in Novo Nordisk. Interestingly Klein, who argued this case for generics, was also one of the counsel for the generics in Novo.
Prost wrote the opinion in Novo and Newman dissented on the obviousness issue.
There is a rift on the court as to how strong the evidence has to be to invalidate the patent for obviousness. They are sparring about the right legal analysis on this question, and it is not yet resolved. I do not know where Hughes and Reyna sit on this debate, but will study their decisions in obviousness cases.
The judges are just like all humans. As the appeals court judge I worked for once said, “we put our pants on one leg at a time too.” They are competitive, and want to see their viewpoints adopted as the law of the land.
Dyk is tough on patentees because of his viewpoint on what it takes to prove obviousness (low threshold). They key is whether the other two are open to the argument that the generics in this case did not carry their burden to show clear and convincing obviousness, based on the evidence. That will be the core of their decision.
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