How does the exception to the prior art rule affect patent litigation?
The exception to the prior art rule, as described in MPEP 2124, can have significant implications in patent litigation. This exception allows for the use of post-filing date evidence in certain circumstances, which can affect arguments related to enablement, written description, and the state of the art. For example, the Federal Circuit case Amgen Inc.…
Read MoreCan post-filing date evidence be used to determine enablement or written description?
No, post-filing date evidence cannot be used to determine enablement or written description under 35 U.S.C. 112(a). The MPEP 2124 clearly states: “It is impermissible to use a later factual reference showing the state of the art existing after the effective filing date of the application to determine whether the application is enabled or described…
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