Published: Wednesday, September 9, 2015
Provisional Applications as Prior Art
By Anton Hopen | Smith & Hopen PA
Dynamic Drinkware v. National Graphics (Fed. Cir. 2015) decided Sept. 4, 2015 was an appeal from IPR Proceeding 2013-00131. The Fed. Circuit held that a provisional application may only serve as prior art if the application disclosure supports the claims of the non-provisional claiming priority. The Fed. Circuit found "[a] provisional application’s effectiveness as prior art depends on its written description support for the claims of the issued patent of which it was a provisional."
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