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Journal of Intellectual Property Law & Practice Advance Access originally published online on April 23, 2009
Journal of Intellectual Property Law & Practice 2009 4(6):387-388; doi:10.1093/jiplp/jpp063
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© The Authors (2009). Published by Oxford University Press. All rights reserved.

Current Intelligence

Commercial success of XanGo juice insufficient to overcome obviousness in ex parte re-examination

James A. Tartal
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC

In re DBC, 545 F.3d 1373 (Fed. Cir. 2008), 3 November 2008, Federal Circuit Court, United States

With respect to a patent directed to a beverage with dietary or health benefits derived from the mangosteen fruit, a prima facie case of obviousness during ex parte re-examination was not overcome by evidence of commercial success that failed to reveal the driving force behind sales was the claimed invention, as opposed to the increasing popularity of mangosteen fruit or the effectiveness of marketing efforts.

Correspondence: Email: james.tartal{at}finnegan.com


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