Non-Limiting Preamble Costs Cochlear at CAFC

Cochlear Bone Anchored Solutions AB (“Cochlear”) owns U.S. Patent No. 7,043,040 (“the ‘040 patent”), directed to a hearing aid for use in those with unilateral hearing loss. Oticon Medical AB, etc. (“Oticon”) successfully petitioned for inter partes review (IPR) of all claims of the ‘040 patent, and in those reviews the USPTO Patent and Trial Appeal Board (“PTAB” or “Board”) held claims 4-6 and 11-12 unpatentable, but maintained the validity of claims 7-10. Cochlear appealed the PTAB’s decision with respect to claims 4-6 and 11-12, while Oticon cross-appealed the PTAB’s determination in connection with claims 7-10. The Federal Circuit (Newman, O’Malley and Taranto) affirmed, but for claim 10, on which they vacated and remanded to the PTAB for further action.

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