In United States v. Arthrex, Inc., the Supreme Court will consider the application of the Appointments Clause to Patent Trial and Appeal Board judges–specifically, whether PTAB judges are principal officers who must be appointed by the President and confirmed by the Senate, and whether the proper remedy is to sever their statutory removal protections.
To address these issues, The Center for Innovation Policy at Duke Law and the Duke Law Program in Public Law will host a Zoom discussion on Friday, February 12, noon to 1:30 p.m. Commentators will include the Honorable Timothy B. Dyk and renowned academics whose scholarship has focused on the key patent, administrative, and constitutional issues. Below are the details.
12:00 noon–12:45 p.m. | Panel I: IP and Innovation Policy
The Honorable Timothy Dyk
Professor John Duffy
Professor Melissa Wasserman Moderator: Professor Arti Rai
12:45 p.m.–1:30 p.m. | Panel II: Administrative and Constitutional Law
Professor Michael Asimow
Professor Jennifer Mascott
Professor Nina Mendelson
Professor Christopher Walker Moderator: Professor Stuart Benjamin
Chudik filed his patent application back in 2006. After receiving a final rejection back in 2010, Chudik filed a request for continued examination (RCE). At that point the examiner withdrew the prior rejection, but then rejected the claims on an alternative ground. Chukik appealed to the PTAB, but the Board did not get a chance to hear the case. Rather, the examiner again withdrew their rejection and re-opened prosecution with a new alternative ground for rejection. That appeal-withdraw-new-ground process happened again. Then it happened again.
Now we’re up to 2017. Chudik had filed four appeals in the same case but the PTAB with the examiner backing-down each time. Finally, on the fourth go-round, the examiner issued a notice of allowance after withdrawing the rejection. His patent: US 9,968,459. Good job Chudik. The patent covers a medical device used in shoulder surgery. This is the type of invention that – if its use becomes widespread – will use-up the whole 20-year patent term.
Patent term — You know that a patentee gets a term of 20-years from the application priority filing date (not counting provisional and foreign priority). BUT, Congress allowed for patent term adjustment in situations involving delays in prosecution. The statute, 35 U.S.C. § 154(b), is a bit complicated and poorly written. In general, a patentee gets extra time whenever it takes the USPTO more than three-years to issue the patent. (B-delay). However, under the statute, the 3-year delay counter is cut-short by an RCE filing. Thus, Chudik’s RCE filing cuts-off that form of adjustment. The statute also provides for A-delay bonuses associated with specific deadlines. This includes issuing a first OA within 14 months and responding to most responsive-filings by the applicant within 4 months. Overall, out of the 11 1/2 years (4246 days) in prosecution, the PTO awarded 5 1/2 years (2066 days) of PTA to the end of the patent term based upon A- and B-delays.
This appeal focuses on what is known as C-delay. 35 U.S.C. § 154(b)(1)(C). This is time added to the patent term due to appellate review by the PTAB (inter alia). C-delay has an important caveat — it only applies in cases where “the patent was issued under a decision in the review reversing an adverse determination of patentability.” Id. Here, although Chudik appealed to the Board four times, the examiner withdrew the rejection each time. The PTO issued regulations regarding the statute that particularly state that an applicant “is not entitled to [C-delay] patent term adjustment for the reopening of prosecution” by the examiner.
Now, the A-Delay already accounts for some of the delay because the examiner has a bit of a deadline to withdraw the rejection. However, Chudik found that repeated appeals cost him about 2 years (655 days) of additional patent term not accounted-for by the A-Delay provision.
On appeal, Chudik argued that (1) the appellate process should be deemed to begin when he files the notice-of-appeal; and (2) an examiner’s decision to withdraw a rejection should be interpreted under the statute as the Board “reversing an adverse determination of patentability” because it has the same impact. Chudik filed a civil action on the issue and lost.
On appeal here, the Federal Circuit did not determine the particular standard-of-review to apply to the agency action — finding that it didn’t matter because the PTO’s interpretation was also the best interpretation.
In particular, the court held that Chudik’s proposed interpretation “is, if not linguistically impossible, strained.” The provision:
[PTA provided for] (iii) appellate review by the Patent Trial and Appeal Board or by a Federal court in a case in which the patent was issued under a decision in the review reversing an adverse determination of patentability.
You decide – does this provision allow for an examiner’s withdraw of a rejection? The court explained that a “review reversing” something requires action by the appellate tribunal (here, the PTAB). Without a PTAB decision, the C-Delay had no effect.
In conclusion, the appellate panel offered a warning to applicants regarding RCEs:
The [loss of] nearly two years (655 days) of delay in the PTO illustrates what applicants should understand when deciding whether to request a continued examination rather than take an immediate appeal. The potential benefit of immediate re-engagement with the examiner through such continued examination comes with a potential cost.
Affirmed.
In the end, Chudik’s patent, originally filed back in 2006 is set to expire in 2032.
The security code on your credit card seems pretty weak. Basically, it is a 3-4 digit number on opposite side of the card. Mr. Sarada Mohapatra’s innovation was to create a more dynamic security code using an internet-based account management approach.
The Examiner rejected the claims as obvious, indefinite, and failing to claim patent eligible subject matter. On appeal, the PTAB reversed the obviousness conclusions, but maintained the rejection on the other grounds. When Mohapatra raised the case to the Federal Circuit, the Solicitor’s office also dropped the indefiniteness challenge — leaving only the eligibility issue.
Mohapatra began his argument with a tradition-and-justice issue. He pointed to many patents issued over the past 20 years relating to the same subject matter. (note, Mohapatra represented himself pro se). The appellate court rejected this argument out-of-hand, concluding that “issuance of other patents in the same field of technology is not a ground for challenging the rejection of a subsequent application.” See In re Wertheim, 541 F.2d 257 (CCPA 1976) (“[I]t is immaterial in ex parte prosecution whether the same or similar claims have been allowed to others.”).
On the merits of Section 101, the court found that the claims are directed to the abstract idea of facilitating “an individual to alter the identification code associated with a financial instrument, such as a credit card, to protect against fraud.” Mohapatra’s invention is limited in a number of ways and does not preempt all uses of this idea, but the court explained:
The fact that the claims are directed to a specific subset of that abstract idea—in this case, enabling a credit card user to change the security code on the card by using a web application—does not render the idea any less abstract.
Further, abstract-idea innovations may provide societal or personal benefits, but remain unpatentable: “The idea of changeable personal-identification numbers may be beneficial. But it is also abstract and therefore not patentable without more.”
At Alice Step 2, the court found no additional inventive concept beyond standard additions such as doing-it-on-the-web and storing the information on a computer.
[These functions] amount to no more than the implementation of an abstract idea on a computer operating in a conventional manner. That is not enough to convert an abstract idea into patent-eligible subject matter.
Rejection Affirmed.
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The following claim 18 was seen as representative for the appeal:
18. A method for countering credit card fraud arising from compromised credit card information by utilizing cardholder changeable card security code (CSC; also known as card verification value CVV2 or card verification data CVD or card identification code CID or card verification code CVC2) comprising:
a) A card issuer enabling change of card security code printed on the card, by
allowing cardholder to choose a new security code value as often as cardholder wishes,
facilitating recordation of chosen card security code by the cardholder by providing an internet connected card account management facility,
using most recently recorded card security code to verify subsequent transaction authorization requests without requiring any change in existing credit cards, terminals, equipment, computer software and communication protocols used in transaction authorization, and
denying transactions when card security code provided during authorization does not match card security code on record;
b) Cardholder changing card security code any time s/he deems it necessary to mitigate risk from possible card security code compromise, by
selecting a new security code value to be used as personal secret separate from the card without requiring assistance from any software program running on any device,
ensuring that selected new security code value is different from the printed code on first change and is different from last recorded code on subsequent changes,
recording the new card security code value using issuer provided internet connected card account management facility, and
remembering and providing the new card security code when prompted during subsequent credit card authorizations.
In 1966, the US Supreme Court decided Graham v. John Deere, and established the framework for adjudging obviousness under the 1952 Patent Act. In the processes Graham’s plow patent was deemed obvious. In this new case, Deere is looking to invalidate Richard Gramm’s patent. This time though the patentee prevails.
Gramm’s US Patent No. 6,202,395 covers a sensor and controller for the head-height of a combine harvester. The case is interesting because of its similarity to the spring-loaded shear in the 1966 case. Here, “a flexible sensor arm that engages the soil and is
dragged across the ground” as the giant tractor rolls along.
The particular novel aspects of the invention here appear to be related to what happens when the Combine is placed in reverse — we don’t want to bob to snap off. The solution is a spring (“biasing means”) for keeping the arm at an incline but allows for displacement when you reverse. The spring then uses Hooke’s Law to encourage the sensor arm to return to its original position.
Deere petitioned the USPTO for inter partes review (IPR). Although the Board granted the petition, it eventually sided with the patentee and found that none of the challenged claims had been proven obvious. The case has included some partial institution mix-up following SAS, and the CAFC has previously affirmed the holding with regard to some of the claims, this appeal is related to claims 12-26.
Claimed Biasing Means: That spring discussed above – the claims require a “biasing means for urging said arm to a selected inclined orientation relative to vertical …” The parties agree that the claim term is properly interpreted as means-plus-function because “biasing” is a functional limitation rather than structural. Further, the patent document discloses a “coiled spring” that performs the claimed function. Thus – as required by the text of 112p6, the claim limitation is interpreted as requiring a coiled spring “and equivalents thereof” that performs the same function.
In the IPR, this limited view of “biasing means” was helpful to the patentee because it narrowed the scope of prior art that read upon the invention. On appeal, the Federal Circuit confirmed that the prior art reference (US3611286) did not disclose the biasing means. An image from the prior-art patent is below. To be clear, the reference does disclose a coiled spring, but it did not operate in the same way — to urge the arm to move toward an “inclined orientation.”
The true key controversy of the appeal was really about whether this issue should be reviewed de novo as a claim construction dispute or instead with substantial deference as a factual finding regarding the scope of the prior art. As usual, the appellant wanted de novo review, but the Federal Circuit refused:
First and foremost, we reject Deere’s attempt to obtain de novo review of a factual finding by reframing it as though it presents a claim construction issue. . . . .
Here, after construing the biasing means limitation, the Board determined that [the prior art] did not teach the first function of the biasing means. That is a factual finding subject to appellate review for substantial evidence. . . . Deere attempts to contort the Board’s opinion by suggesting that the Board actually misconstrued the claim in such a way so as to not read on the teachings of Cleveland. We are not persuaded by that argument, which seeks to blur the clear delineation in the law between the two steps of the invalidity analysis.
Slip Op. Notably, the court does not actually do a very good job of explaining why this particular dispute is not a claim construction dispute except that the PTAB did not see it as claim construction either.
An expansive notion of “property” also allows for expansive criminal prosecution. As an example, the Federal Wire Fraud statute makes it a crime to use the “wires” to move forward with “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1343.
Case-in-point is Kelly v. U.S., 140 S. Ct. 1565 (2020). Kelly case involves George Washington Bridge lane closing scandal known lovingly as “Bridgegate.” In 2013, Chris Christie was Governor of New Jersey seeking reelection (he won). His deputy Chief of Staff Bridget Kelly (and others) had caused the bridge lanes to be closed (via text messages) “for a political reason—to punish the mayor of Fort Lee for refusing to support [Christie’s] reelection bid.” Kelly was prosecuted and criminally convicted for property fraud — both wire fraud as well as fraud on a federally funded program. The Second Circuit affirmed.
These statutes require the use of fraud for the purpose of obtaining “property.” The Supreme Court took up the case and reversed the convictions — holding that Kelly’s actions were not designed to obtain money or property and thus do not violate the statutes. The court recognized the abuse-of-power: “Butnot every corrupt act by state or local officials is a federal crime.” (Unanimous opinion authored by Justice Kagan).
The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property.
The Government pointed to the following property frauds: commandeering of bridge lane access; diverting the “wage labor” of federal employees. While the bridge itself can be considered Property, the actions here, according to the court, were a “quintessential exercise of regulatory power” rather than a scheme to “appropriate the government’s property. The court noted that a “public employee’s paid time” is also the property of the government. According to the court, the use of employee time was “incidental to” the lane-closure purpose — the use of that portion of the government’s property was not the “object of the fraud” as required under Cleveland v. U.S., 531 U.S. 12, (2000) (the statute “requires the object of the fraud to be ‘property'”).
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The decision here offers an interesting dichotomy regarding property and property rights. On the one hand, the Court offers a broad conception of what counts as property — including a conclusion that an employer “owns” the time employees are spending working (this seems like a pre-civil war conclusion). On the other hand, the Court weakens property rights by reinforcing its prior conclusions that major regulatory actions that shift the owner’s ability to use its property do not count as property rights violations. This same dichotomy is seen in patent law with the advent of inter partes review; and is a longstanding element of zoning law.
In January 2011, the Supreme Court vacated and remanded (GVR) a parallel case in Blaszczak v. U.S., 20-5649, 2021 WL 78043 (U.S. Jan. 11, 2021) “for further consideration in light of Kelly v. United States, 590 U.S. –––– (2020).” In that case, the Second Circuit held that “confidential information” about an upcoming regulatory action was a property right whose “embezzlement” could serve as a basis for property fraud under the statute. In its decision, the Second Circuit did not use the term “trade secret” but rather suggested that the information was property because it was a “thing of value.” quoting U.S. v. Girard, 601 F.2d 69 (2d Cir. 1979). The outcome of Blaszczak will end up giving us a lot more information about the meaning of property in the US.
The claimants in the case are heirs to German Jewish art dealers who purchased a set of medieval Christian relics known as the Guelph Treasure (Welfenschatz) from the Duke of Brunswick in 1929 (although by then the Duke had already abdicated).
As the Nazi government rose to power, the dealers were coerced to sell the collection back to the State (Prussia), allegedly for for 1/3 of their value. After WWII, the US took possession of the collection but then later handed the collection back to Germany and the art is on display in a Berlin museum.
The heirs perused claims in Germany, but the special German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property found that the sale had not been taken under duress.
Later, the heirs sued Germany in the US, asserting a set of common law replevin, conversion, declaration of ownership, unjust enrichment, fraud, breach of good faith, etc.
Normally a Sovereign Nation such as Germany is granted sovereign immunity in U.S. Federal Court. Although the core of Sovereign Immunity stems from international tradition, US also has a statute on point — the Foreign Sovereign Immunities Act (“FSIA”). FSIA has a number of express exclusions from the general rule of immunity. The salient exception here allows US courts to hear lawsuits against foreign states where the claim is for “property taken in violation of international law.”
The D.C. Circuit court found no immunity-holding that the plaintiffs had properly alleged that the coerced sale was “an act of genocide because the confiscation of property was one of the conditions the Third Reich inflicted on the Jewish population to bring about their destruction.”
In its unanimous opinion, the Supreme Court has vacated and remanded — holding that the FSIA exceptions do not extend to protect human rights. And, in particular, the law does not open the door to allowing US courts decide whether a particular country violated the human rights of its own citizens. Further, when a country unlawfully takes the property of its citizens, that taking is a purely domestic matter that does not implicate international law.
We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.
And in 1976 [the year FSIA was passed], the state of that body of law was clear: A “taking of property” could be “wrongful under international law” only where a state deprived “an alien” of property.
Slip Op. This outcome follows the international norm that gives countries a free-pass under international law for violations of the human rights of its citizens.
As the International Court of Justice recently ruled when considering claims brought by descendants of citizens of Nazi-occupied countries, “a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law.”
Slip Op. quoting Jurisdictional Immunities of the State (Germany v. Italy), 2012 I. C. J. 99, 139 (Judgt. of Feb. 3).
On remand, there will likely be more arguments. In particular, the plaintiffs will likely argue that their ancestors were not German nationals at the time of the sale – thus prompting an international taking. Germany will also respond with a comity argument — even if it lacks sovereign immunity, the court should use its discretion to not hear the case.
Columbia University v. Illumina, Inc. (Fed. Cir. 2021) (nonprecedential opinion)
In this IPR decision, the PTAB cancelled claims from five patents owned by Columbia — finding them obvious. US Patent Nos. 9,718,852 (clm 1); 9,719,139 (clm 1); 9,708,358 (clm 1); 9,725,480 (clm 1); and 9,868,985 (clms 1-2). The patents are all related to methods of sequencing DNA using “sequencing-by-synthesis.” Illumina believes that it owns the process. Columbia felt otherwise and sued Illumina for patent infringement in D.Del. That lawsuit has been stayed since July 2018 as the court awaits these IPR decisions. On appeal, the Federal Circuit has affirmed.
Here is a fairly easy to understand video about how this work:
The likelihood of winning an appeal certainly depends upon the merits of your case. The second most important factor is the level of deference afforded to the lower-tribunal. The Federal Circuit gives deference to any factual findings made by the PTAB in its IPR decisions. In particular, a PTAB finding of fact will be affirmed if it is based upon “substantial evidence.” The words “substantial evidence” might sound like a lot of evidence, it is actually a quite easy threshold. A decision is based upon “substantial evidence” if it is supported by “more than an iota” of evidence or if “a reasonable mind might accept the evidence to support the finding.” On the other hand, questions of law are reviewed without deference — de novo.
Obviousness is a question of law reviewed de novo. However, the ultimate conclusion of obviousness is always based upon a large number of factual findings, “including the scope and content of the prior art, differences between the prior art and the claims at issue, the level of ordinary skill, and relevant evidence of secondary considerations.” See my simple tip-of-the-mountain drawing below.
Here, the patentee challenged three factual findings by the Board, and the Federal Circuit found that each finding was supported by enough evidence to pass muster. The three topics: motivation-to-combine; and two reasonable-expectation-of-success arguments.
The patentee argued someone skilled in the art would not have been motivated to combine an allyl capping group into a sequencing-by-synthesis approach. Their particular argument, was that a prior art reference indicated some problems with use of the capping group and thus discouraged its use. As supporting evidence, Columbia pointed to the fact that other researchers ceased related experiments after the reference was published. On appeal, however, the Federal Circuit noted that this “teaching away” argument requires “clear discouragement” which was not proven. Although the reference did not show the experiment to be a smashing success, it also was not a failure. Thus, while researchers might have considered better alternatives based upon the reference, it did not actually teach-away.
While it may be true that … scientists ultimately chose to research alternative capping groups, “just because better alternatives exist in the prior art” does not mean that an inferior alternative “is inapt for obviousness purposes.” Quoting In re Mouttet (Fed. Cir. 2012).
Thus, the PTAB’s finding of motivation to combine was supported by substantial evidence.
Not huge, but is it time to amend Section 145 to allow patent applicants to file their civil action in any venue that houses one of the National or Regional Patent Offices? (E.D.Va.; N.D.Cal.; N.D.Tex.; E.D.Mich.; D.Col.). Here is the current law:
35 U.S. Code § 145 – Civil action to obtain patent
An applicant dissatisfied with the decision of the Patent Trial and Appeal Board … may, unless appeal has been taken to the … Federal Circuit, have remedy by civil action against the Director in the United States District Court for the Eastern District of Virginia. . .
Chicago patent attorney Kevin Keener recently filed the following action in N.D. Ill. Federal Court. You’ll note that the name of the patentee was filed under seal as was any identifying information about the asserted patent. The infringers are unknown but likely “foreign” individuals and unincorporated businesses who are selling infringing items to US customers via Amazon.com and other “infringing webstores.” Amazon has not been named as a defendant.
The patentee argues that the secrecy is important because of the “risk that Defendants will transfer assets or destroy evidence upon learning of Plaintiff’s identity and patent.” The case has been assigned to Judge Matthew Kennelly as part of the Patent Pilot.
The complaint twice refers to its “design” and never to an “invention.” This makes me think it is likely a design patent case.
Although the defendants are unknown and are believed to be foreign, the patentee alleges that the N.D.Ill. “Court has personal jurisdiction over Defendants in that they transact business in the State of Illinois and in the Northern District of Illinois.” Regarding venue, the complaint alleges lots of potential connections, but fails to cite the statement in 28 U.S.C. § 1391(c)(3) that a foreign defendant “may be sued in any judicial district.”
Presumably, the plaintiff may be seeking an immediate temporary restraining order under R.65. However, the rules limit the court’s ability to act and at least require an “affidavit or a verified complaint” stating particular facts which “clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Id. It is possible that such a document was filed under seal.
M&K Holdings, Inc. v. Samsung Electronics Co., LTD. (Fed. Cir. 2021)
M&K’s U.S. Patent No. 9,113,163 covers a “method of decoding moving picture.” There is some history between Samsung and M&K’s family of companies, whose patents also originate in Korea. This appeal stems from an IPR final written decision finding the challenged claims invalid.
Decide only the Issues Raised: The first bit here is easy but quirky. The petition challenged claim 3 of the ‘163 patent as obvious. The PTAB found the claim unpatentable as anticipated, but did not perform an obviousness analysis. On appeal, the Federal Circuit vacated — holding that the PTAB “deviated impermissibly from the invalidity theory set forth in Samsung’s petition.” For its part, Samsung argued that the anticipation holding was no-problem. Just like the vast-majority-of-cases, the anticipation here is inherent in the obviousness theory. In particular, we have the same prior art — its just that the PTAB only needed the primary reference. In its petition, Samsung suggested a second reference showing the “predetermined block” claim limitation.
On appeal, the Federal Circuit found notice lacking since Samsung’s original petition stated that the primary reference did not disclose the “predetermined block.” According to the court, if M&K had known about the anticipation argument, it might have shifted its argument about the scope of claim 3. The cynicism here is relevant – the Federal Circuit is recognizing and even encouraging parties to shift their patent claim meaning arguments depending upon the circumstances. This outcome can be linked with the court’s conclusion in Egenera, Inc. v. Cisco Systems, Inc. (Fed. Cir. 2020). In that case, the court permitted the patentee to shift its arguments regarding claim meaning and patent scope as the case moved through various tribunals.
In the end, the difference here between anticipation & obviousness was sufficient enough for the court to find an APA violation by the PTAB in finding the claim anticipated.
Printed Publication: The patentee also challenged the decision by arguing that some of the references relied upon were not actually prior art. We have three references at issue that were all uploaded to a website controlled by the Joint Collaborative Team on Video Coding (“JCT-VC”):
Bross et al., WD4: Working Draft 4 of High-Efficiency Video Coding, JCTVC-F803 (version 3) (uploaded Sept. 8, 2011).
Park et al., Modifications of Temporal MV Memory Compression and Temporal MV Predictor, JCTVC-E059 (version 4) (uploaded Mar. 19, 2011).
Zhou, Non-CEP9: Modified H Position for Memory Bandwidth Reduction in TMVP Derivation, JCTVC-G082 (version 1) (uploaded Nov. 9, 2011).
All three were uploaded to the server, and the patentee argued that a person of ordinary skill in the art could not have found Park or Zhou using reasonable diligence before the patentee’s priority date of December 13, 2011. Here, the references were each discussed at a JCT-VC development meeting of ~200 people prior to that date, and those meetings were not subject to “any expectation of confidentiality.” The documents were hosted in downloadable form, and could be searchable by title. Further, JCT-VC was a “prominent” group within those skilled in video-coding technology and those outside the group would have found the website. In reviewing the relevance of these facts, the Federal Circuit asked “whether the channel through which the references were publicized is prominent or well-known among persons of ordinary skill in the art.” These facts came together to allow the Federal Circuit to affirm the “Board’s finding that persons of ordinary skill in video-coding technology could have accessed Park and Zhou with reasonable diligence through the JCT-VC organization. None of M&K’s arguments undermine the Board’s finding that Park and Zhou were publicly accessible and its conclusion that those references constitute printed publications within the meaning of 35 U.S.C. § 102.”
Note here that this decision is in some serious tension with Samsung Elecs. Co. v. Infobridge Pte. Ltd., 929 F.3d 1363 (Fed. Cir. 2019) (Version 4 of the same working draft not prior art). That decision involved a patent from the same inventor, Soo Mi Oh.
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One oddity of this case is the priority dates. The patent application at issue was actually filed in September of 2012 but claims priority back to two Korean applications filed in 2010 and early 2011 and then a PCT application filed in Korea on December 13, 2011. The PCT application includes additional matter that is found in the claims. The patentee did not attempt to prove an earlier invention date. So, the December 13, 2011 date was used as the critical-date for 102(a) prior art.
Can we eliminate the anticipation doctrine and still have a fully-operational patent system with 99.99% identical outcomes? (Add additional comment below).
