December 1, 2016
Authored and Edited by Christopher B. McKinley; Erin M. Sommers, Ph.D.
In Perfect Surgical Techniques, Inc. v. Olympus America, Inc., 841 F.3d 1004 (Fed. Cir. 2016), the CAFC held that the PTAB’s test for diligence—continuous exercise of reasonable diligence—when antedating a prior art reference was too strict. A majority of the Court held, instead, that the PTAB needed to consider whether the inventor acted with “reasonably continuous diligence.” The Court remanded the case with instructions for the PTAB to evaluate diligence under this more relaxed standard using a rule of reason analysis. On remand to the PTAB, the parties settled and the case was terminated without further resolution on the issue of diligence. Further discussion of the decision can be found on Finnegan’s Federal Circuit IP Blog.
Patent Trial and Appeal Board (PTAB), United States Court of Appeals for the Federal Circuit (CAFC), anticipation
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