In today’s article, Statutory Bar Prior Art in the Nonobviousness Analysis, Dennis Crouch asks whether anyone has a test case that might test applicability of 102(b), post invention prior art in a 103(a) obviousness analysis. The problem, according to Prof Crouch:
A plain reading of the statute that considers the obviousness of an invention “at the time the invention was made.” …
Despite that seeming clarity, in its obviousness analyses, the Foster Court (and subsequently, the CAFC) has given full 103(a) consideration to post-invention activities that qualify as prior art under Section 102(b).
This is an interesting argument, and might be more than just semantics, but, as Crouch notes “the weight of precedent is on the side of the current rule.” Having the better of an argument is one thing, but convincing the CAFC to reverse 45 years of caselaw is another altogether.