Under pre-America Invents Act law — which governs a considerable number of litigated patents — patents and published patent applications are prior art as of their filing date. But patents and patent applications often claim priority to an earlier-filed provisional application. Under the U.S. Court of Appeals for the Federal Circuit's 2015 decision in Dynamic Drinkware LLC v. National Graphics Inc., to establish that a reference is prior art under pre-AIA Title 35 of the U.S. Code, Section 102(e), as of the date of the provisional application to which it claims priority, a challenger must show that the reference is "entitled to the benefit of the filing date of its provisional application" by proving that the provisional application provides written description support for a claim of the Section 102(e) reference.

To continue reading Andrew D. Cohen's and Newton Portorreal's article in Law360, please click here.