In OSI Pharmaceuticals, LLC v. Apotex Inc., No. 2018-1925 (Fed. Cir. Oct. 4, 2019), the CAFC reversed the PTAB's conclusion that a reasonable factfinder could conclude a person of ordinary skill in the art would have had a reasonable expectation of success in using erlotinib to treat non-small cell lung cancer in a mammal. The CAFC held "the Board misinterpreted the asserted references to teach more than substantial evidence supports," and the references provided no more than hope, which is "not enough to create a reasonable expectation of success in a highly unpredictable art." This case involved a patent covering the use of erlotinib to treat non-small cell lung cancer. Further discussion of the decision can be found on Finnegan's Federal Circuit IP Blog.
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