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Provisional Applications as Prior Art


By
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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