In December of 2016, Insys Development Company, Inc. (“Insys”) petitioned for IPR seeking cancellation of a U.S. Patent3 assigned to GW Pharma Limited (“GW”) and Otsuka Pharmaceutical Co., Limited (“Otsuka”). The patent is directed to methods of treating seizures using CBD. Insys argued that all claims of the patent were unpatentable as obvious over the prior art because the use of CBD to treat seizures was well known prior to the invention. GW and Otsuka countered that treating seizures with CBD was, at best, a promising candidate for further study and a person of ordinary skill had no expectation that CBD would treat seizures. In its final written decision, the Board struck down claims 1 and 2 as obvious but upheld the remaining 11 dependent claims because Insys failed to identify where any of the claim limitations were disclosed in the prior art. The PTAB’s decision indicates that the PTAB does not intend to treat patents related to cannabis differently than other patents based on the subject matter alone.
