declaration : CAFC Alert

CAFC clarifies the presumption that prior art is enabled after In re Antor Media Corp (Fed. Cir. 2012)

Michael Caridi | April 10, 2013

In re Steve Morsa

April 5, 2013

Panel:  Rader, Lourie and O’Malley.  Opinion by O’Malley.

Summary

The Board of Patent Appeals and Interferences (“Board”) had affirmed an Examiner’s finding that a short press release, relied on for an anticipation rejection, was enabling.  In making its decision, the Board had held that arguments alone by the applicant were insufficient to rebut the presumption that a reference was enabling.  The CAFC found that the Board and the examiner had failed to engage in a proper enablement analysis of the reference and vacated the anticipation finding.


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A District Court application of Therasense

Lee Wright | February 28, 2013

Caron and Spellbinders Paper Arts Company, LLC vs. QuicKutz, Inc.

United States District Court for the District Of Arizona

November 13, 2012, Decided

 

SUMMARY

In Therasense, Inc. v. Becton, Dickinson & Company, 649 F.3d 1276 (Fed. Cir. 2011) the CAFC ruled that District Courts must find intent and materiality separately, i.e., weighing the evidence of intent to deceive independently from analysis of materiality.

Here, in one of the few cases since Therasense, a District Court applies separate analyses for each of intent and materiality.  In addition, the District Court applied the exception to the but-for materiality requirement in cases of affirmative egregious misconduct.

Knowingly not naming the inventors was held to be inequitable conduct.

Declarations by persons not skilled in the art were held to be inequitable conduct.

Declarations that did not disclose financial relationships with the inventors were held to be inequitable conduct.

A Declaration where the Declarant, when he made the declaration, did not know whether the statements in the declaration were true or not was held to be inequitable conduct.


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