KSR – A Whack at the Presumption of Validity
From slip op. 22-23:
We need not reach the question whether the failure to disclose [the] Asano [prior art reference] during the prosecution of [the] Engelgau [patent in suit] voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption. We nevertheless think it appropriate to note that the rationale underlying the presumption – that the PTO, in its expertise, has approved the claim – seems much diminished here.
Ouch!
Maybe not a very big ouch. Isn’t the court referring to the possibility of a weakened presumption ONLY in a case like that at bar where prior art was not disclosed?
Comment by Susan Carhart — May 7, 2007 @ 10:18 am
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