by Dennis Crouch
The Federal Circuit's recent decision in Merck Serono S.A. v. Hopewell Pharma Ventures, Inc. provides important clarification on when a patent reference qualifies as prior art "by another" under pre-AIA law 35 U.S.C. § 102(e). It also highlights ways that the AIA has subtly changed this category of "secret springing prior art" that is now codified under § 102(a)(2) and the special exceptions found in § 102(b)(2) and §102(c).
The case comes as we also have a pending Supreme Court petition in Lynk Labs challenging whether this secret prior art qualifies as a "printed publication" that can serve as the foundation for an inter partes review (IPR) challenge. That petition is set for consideration by the Court later this week.
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