In a recent ruling, In re Riggs, the Federal Circuit clarified the standards for determining the prior art status of published patent applications. Historically, published applications could spring back to their provisional filing dates, creating issues of 'secret springing prior art.' Riggs established a two-part test requiring that at least one claim in the application is supported by the provisional application, as well as ensuring that the specific content in question is also backed by written description in the provisional. This decision alters how inventors may approach their filings and engage with prior art issues.
The Federal Circuit has established a more rigorous test for determining when a published patent application can be considered prior art, focusing on written description support.
The core principle is that earlier-filed applications should have priority. However, this leads to complex situations with 'secret springing prior art' affecting inventors.
Under the Riggs decision, the assertion of prior art status requires demonstrating both that the claim is supported by the provisional and that the content relies on the provisional.
The ruling introduces a two-part test for prior art under 102(e), which emphasizes the necessity of written description support in patent applications.
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