Yesterday, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Global Health Solutions LLC v. Selner affirming the Patent Trial and Appeal Board (PTAB) in the first appeal of a derivation proceeding under the America Invents Act (AIA) litigated at the Board. Although the Federal Circuit corrected the PTAB on the proper analysis for derivation proceedings in light of the AIA’s related first-to-file provisions, the appellate court found no reversible error in the Board’s determination that Marc Selner could not have derived the invention at issue from GHS’ inventor because Selner proved an earlier conception of the invention.
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