On March 18, 2024, the United States Patent and Trademark Office (USPTO) issued a memorandum to the Patent Examining Corps regarding the proper examination.
The Federal Circuit held in Dynamic Drinkware, LLC v. Nat'l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) that for a pre-AIA 35 U.S.C. § 102(e) prior-art reference to be entitled to a provisional.
The Federal Circuit held in Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) that for a pre-AIA 35 U.S.C. § 102(e) prior-art reference to be entitled.
When Dynamic Drinkware was decided in 2015, commentators debated whether differences in the language of the American Invents Act (AIA) version of 35 USC § 102 would shield AIA patents.
The USPTO has made precedential a recent PTAB decision, Penumbra, Inc. v. RapidPulse, Inc., where the PTAB reaffirmed the USPTO's existing position that Dynamic Drinkware does not apply to AIA patents.