PTAB Upholds Eye Treatment Tool Patent

Source: LAW 360

The Patent Trial and Appeal Board upheld a patent covering a tool used to treat an eye disorder, finding accused infringer MiBo Medical Group hadn’t shown the invention was obvious, according to a report in Law 360.

The PTAB, in a final decision, ruled MiBo failed during inter partes review to prove that any of the challenged claims in Blephex LLC’s patent were invalid. Lake Worth, Florida-based Blephex sued its rival in early 2016 and accused it of infringement.

Blephex’s patented device is used to treat people with blepharitis, an infection of the eyelid.

According to Blephex, previous treatments typically involved antibiotics or application of a topical steroid. But the company developed a handheld tool that spins a small sponge along the edge of the eyelids to remove debris and exfoliate the eyelid.

MiBo sells a similar tool, called the LidPro, which Blephex has alleged infringes its patent. Blephex sued its Dallas-based rival in the Northern District of Texas and the case has been put on hold pending the PTAB’s review of the patent.

In its petition with the board, MiBo argued numerous claims in the patent were invalid because they would have been obvious. It cited, among other things, documents talking about the Algerbrush, a small battery-operated tool used to remove so-called rust rings from the cornea and an internet article that describes using a swab to clean someone’s eyelid.

But the PTAB said in its decision that there was a “dearth of reasoning” as to why someone would have been motivated to combine elements of MiBo’s references to create Blephex’s tool.

“As a whole, petitioner’s assertions are not supported by persuasive evidence or facts and amount to simply a mere allegation that the combination would have yielded the claimed invention,” the board wrote.

The PTAB also found certain secondary considerations, such as praise from those within the industry for Blephex’s tool, weighed against finding the patent claims obvious. It noted, for instance, the tool was a finalist for a 2016 “Product of the Year” award by the Association of Optometrists.

“Patent owner has supplied credible evidence that the [device] was praised and recognized as an innovative product,” the board wrote.

The patent at issue is U.S. Patent No. 9,039,718.

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