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952 F.2d 388 In re Baxter Travenol Labs 12/30/1991

Patent 4,222,379 (the Smith Patent) described a multiple blood bag system to store three components of whole blood (red blood cells, plasma, and platelets). The differences in the various materials used to make each bag had desirable properties relating to its contents. There exists in the system what is called the "primary" or donor bag which collects the red blood cells, and one or more "secondary" or transfer bags which collect other blood components. Baxter filed a request for a reexamination of the Smith patent in 1986 and submitted a document titled "Contract PH 43-67-1403; Final Technical Progress Report, Development of Containers for Preservation of Frozen Blood Components", published by a Mr. Becker, a Baxter employee, in October 1969. The court held that the Becker reference taught that using a particular material for a primary blood bag would have beneficial effects(DCHP), the same material included in the patent as a key material. However, the Becker document never mentioned DCHP by name, but rather referred to an improvement of the previous Baxter system, just as Smith would improve it. On page 49, Becker writes that the multiple blood bag system is "very similar to Baxter Travenol's commercial, two blood bag container. The exception is that the secondary transfer pack was a 350 ml Teflon container..." The court noted that one skilled in the art could infer from the Becker document that the material in use was DCHP - because Baxter's commercial system used a primary bag plasticized with DCHP - even without it being mentioned. Further the addition of the Teflon bag, when combined with said inference, allows one with ordinary skill in the art to anticipate the Smith patent.

The court held that the document acted as a description of the patent in a printed publication, and thus the patent was invalid under 35 USC 102(b). It also held that the patent was invalid under the nonobviousness criteria of 35 USC 103.