Using Prior Art In Patentability Args Amid Fed. Circ. Confusion

Law360 (November 18, 2020, 5:27 PM EST) -- The U.S. Supreme Court has seesawed on whether consideration of prior-art-based arguments, such as novelty, belong in a Section 101 inquiry. Where we stand today is the Supreme Court embraced that approach in Mayo Collaborative Services v. Prometheus Laboratories Inc.

Since then, the U.S. Court of Appeals for the Federal Circuit has been forced to embark on a new path, one it had not traveled down before, and its treatment of prior-art-based arguments during a Section 101 analysis has been inconsistent. This poses challenges to both district courts as well as practitioners.

This article aims to provide some clarity by (1)...

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