Patent Law Hypothetical: Answer 1

Answer to Question 1:

Generally, 35 U.S.C. §102 is the starting point for determining whether an invention is patentable. In this case, however, nothing in §102 bars patentability: §102(a) cannot block the patent because the goo-whiz was not known before GooCo came up with it. Goo-whiz came on the market less than one year ago, so no §102(b) bar. Goo-whiz was not abandoned under §102(c). The invention was not patented prior to filing a US application under §102(d). §102(e) only applies to prior U.S. applications or “international” applications, not to a nationally filed UK patent. Goo-whiz is not a derivative work under §102(f). And, there is no race to the patent office under §102(g).

The major loss of rights for GooCo is that it will no longer be able to claim a right of priority to the earlier UK application under 35 U.S.C. §119.