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Prior Art

Prior Art. What is prior art? Prior art = certain types of knowledge defined by 102(a)-(g) that may operate to defeat patentability or invalidate a patent To be relevant, art must fall within 102 102 prior art, however, does not necessarily have to anticipate any claim. Novelty Requirements.

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Prior Art

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  1. Prior Art • What is prior art? • Prior art = certain types of knowledge defined by 102(a)-(g) that may operate to defeat patentability or invalidate a patent • To be relevant, art must fall within 102 • 102 prior art, however, does not necessarily have to anticipate any claim

  2. Novelty Requirements • Certain activities before DOI constitute prior art • DOI = conception + diligence to RTP • Conception: definite and permanent idea of entire invention • Diligence: must be continuous and begin prior to conception by other and extend to his RTP • RTP • Constructive • Filing date of completed application • Actual • Invention worked for intended purpose • If any of these activities occur before DOI, then invention may not be novel and not entitled to patent (or patent may be invalid)

  3. Activities Before DOI That Constitute Prior Art • 102(a) – public prior art (first-to-invent rule) • Known or used by others in US • Patented anywhere • Printed publication anywhere • 102(e)-(g) – secret prior art • 102(e): earlier( than DOI) application published or issues • 102(f): derived from true inventor • 102(g)(2) • Applies only to invention made in US • First to RTP entitled to patent unless . . .

  4. Statutory Bars • Certain activities constitute statutory bars • 102(b), (c), (d) • 102(b): activities before critical date (> 1 year before filing date of application) • 102(c): abandonment • 102(d): delay • What happens to a patent where the inventor conceived > 1 year before filing and there was a public use of anticipating art after inventor’s conception but more than a year before inventor filed?

  5. Corroboration • For establishing that art is prior art • Corroboration of oral evidence of prior invention is the general rule • RTI case is example of role corroboration can play • For establishing inventor’s date of conception • Inventor’s testimony standing alone is insufficient to prove conception • For establishing co-inventorship • Corroborating evidence is required of any asserted contributions to conception of the invention • For establishing diligence • Corroboration needed • For establishing actual reduction to practice • Corroboration needed

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