Errors, Incorporation by Reference, and the Abhorrent Doctrine of Disappearing Anticipation

Errors, Incorporation by Reference, and the Abhorrent Doctrine of Disappearing AnticipationMark R. BuscherThe standard for anticipation of a patent claim is seemingly straight forward – a single prior art reference recites each and every element and limitation of the claim. “There must be no difference between the claimed invention and the reference disclosure, as viewed by a person of ordinary skill in the field of the invention.” Yet some interesting wrinkles can occur. Suppose a reference fully anticipates a patent claim, but upon learning additional facts the reader would understand the reference differently and the reference would no longer anticipate the claim. Is such disappearing anticipation sufficient to invalidate the claim? Is anticipation negated by subsequent knowledge, even though at some point in time the worker of ordinary skill in the art was in possession of the claimed invention? One court decision seems to say “no”:…

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