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Elf
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But, the law only requires that the product could have been patented at the time of the offer. Maybe Samsung's Galaxy S6 is just waiting to be released - along with the 600 versions of the iPhone that have already been invented.
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Judge Brinkema is being loose here with the statute and rules. Applicant delay is treated under 154(b)(2)(C), and the USPTO makes very clear in the MPEP that the rule promulgated under 154(b)(2)(C) is 37 CFR 1.704. RCE's are treated separately by 35 USC 154, i.e., under 35 USC 154(b)(1)(B), and the USPTO makes very clear in the MPEP that the rule promulgated under this section of the statue is 37 CFR 1.703. Judge Brinkema is arguing that RCEs are applicant delay - even thought the USPTO has NEVER provided this in the applicant delay rule (37 CFR 1.704). I don't think it is correct for the USPTO and Judge Brinkema to start mixing and matching the statue and the rules like this. If the USPTO really wants RCEs to be applicant delay - they could try to add it to 37 CFR 1.704. Although, arguably they shouldn't be able to do so, given that a different portion of 35 USC 154 was crafted to deal with RCEs.
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This all smacks of socialism.
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I definetly agree with you - in the hypo you gave, the info. is 102f prior art only to the Company - but not to the inventor, nor is it prior art to anyone who had no access to the info. I can't see under current law how that would be prior art to anyone but the Company. It's not a printed publication. As for knowledge or use - a CDA isn't dispositive. It's only public when its accessible to the public and that requires no deliberate attempt to keep the info. secret. As far as I'm concerned, a secure email, the US post, Fed Ex, a confidential envelope, a courier, and many other means of normal communication channels evidence a deliberate attempt to keep info. secret - even if you aren't conciously thinking about it.
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That art is 102(f), which, under OddzOn v. Just Toys, is available as part of a 103 rejection. http://www.ll.georgetown.edu/federal/judicial/fed/opinions/96opinions/96-1550.html Courtersy of Michel, Lourie and Rader.
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Don't you think Kubin indicates that, actually, it does very much matter the manner in which the invention was made? People knew how to do this, people knew how to do that, if said people went and did this and that, why, they'd have your sequence. So, if obvious to try is now legit, then the procedure by which you arrive at the invention is also a legit point of attack.
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