non-enablement : CAFC Alert

Like prior art patents, potentially anticipatory non-patent printed publications are presumed to be enabling

Cindy Chen | October 5, 2012

In re Antor Media Corporation

July 27, 2012

Panel: Rader, Lourie and Bryson. Opinion by Lourie.

Summary

Antor Media Corp. appeals from the decision of the Board of Patent Appeals and Interferences rejecting on reexamination the claims of its patent as anticipated and obvious over four prior art references.  The prior art references include three printed publications and one U.S. patent.  The Board found that two of the printed publications anticipated the claims in Antor’s patent. Here, Antor argues that since the printed publications are not enabling, they could not have anticipated the claims. Antor further argues that unlike prior art patents, prior art printed publications are not presumptively enabling.  The principal issue on appeal is therefore whether the presumption that prior art patents are enabling can be logically extended to printed publications. The Federal Circuit answers that it can, holding that a prior art printed publication cited by an examiner is presumptively enabling barring any showing to the contrary by a patent applicant or patentee.


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