§102 : CAFC Alert

The public use bar may not be triggered even if the invention is tested publicly prior to the critical date

| September 14, 2018

Polara Engineering Inc. v. Campbell Company

July 10, 2018

Before Lourie, Dyk, and Hughes.  Opinion by Lourie.


The Federal Circuit affirmed the jury’s finding of experimental use that negates application of the public use bar by Polara because Polara’s activities were necessary to ensure that the invention would work for its intended purpose and Polara’s invention was “a life safety device” that the testing was “imperative.”  The Federal Circuit found that while it is undisputed that Polara did not enter a confidentiality agreement, Polara maintained the secrecy of the invention.  Finally, the Federal Circuit found that Polara was not commercially exploiting its invention during the test periods.

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Article posted to online periodical qualified as “printed publication” under §102(b) where person skilled in the art could have located it

| November 15, 2012

Voter Verified, Inc. v. Election Systems & Software

Decided  November 5, 2012

Panel: Lourie, Reyna, and Wallach.  Opinion By: Lourie


The patent holder alleged that automated voting systems of its competitors infringed U.S. Reissue Patent RE40,449 (“the ‘449 patent”).  The district court found that claim 49 of the ‘449 patent was invalid as obvious under 35 U.S.C.S. § 103 in view of an article in an online periodical before the patent’s critical date.  The district court found that an article in an online periodical qualified as a printed publication under 35 U.S.C.S. § 102(b).  CAFC affirmed holding that the article could have been located by someone skilled in the art before the critical date.


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