Homework 5 - ewolz

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Printed Publication

In the US Court of Appeals case MEHL/Biophile Itern. Corp. v. Milgraum, the court held that a method for laser hair removal was invalid on the grounds of anticipation in the prior art. MEHL/Biophile accused Dr. Milgraum infringed on US Patent 5059192. In a summary judgment, Milgraum claimed the patent was anticipated in two prior arts. The first was an instruction manual for the Spectrum RD-1200 laser used in tattoo removal, and the second was an article in the 1987 Journal of Investigative Dermatology authored by Dr. Luigi Polla. The District Court agreed that the manual anticipated the claims and granted a judgement of invalidity. Upon appeal, the US Court of Appeals disagrees that the RD-1200 manual anticipated the claimed invention, but found the Polla article did and thus affirms the lower courts decision. The Court of Appeals bases this decision on In re Schreiber 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997) which stated that "to anticipate a claim, a prior art reference must disclose every limitation of the claimed invention, either explicitly or inherently." The court qualifies the the use of the term inherently by referencing In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981) which stated "inherency...may not be established by probabilities or possibilities." Because the Spectrum manual does not discuss hair follicles or the act of aligning a laser over a hair follicle opening, it does not teach all the limitations of the claimed invention. However, the Court of Appeals found that the Polla article did teach all the limitations of the claimed article. The Polla article dealt with the aligning of a laser light over a guinea pigs back (which no one disputes is hairy) and provides images depicting follicular damage induced by the laser. Lastly, the method used to expose the Q-switched ruby laser to the guinea pigs back inherently taught the vertical alignment of the laser over follicle openings. The court found that the Polla laser anticipated claim 1 of the '192 patent; because MEHL/Biophile didn't argue separately the validity of other dependent claims, the court also found those claims to be invalid as well.