Patent Need Not Be Valid To Be 102(e)(pre-AIA) Prior Art, PTAB Litigation Blog

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This blog has previously discussed the Federal Circuit’s decision in Becton, Dickinson and Co. v. Baxter Corp. Englewood, — F.3d —, No. 2020-1937, 2021 WL 2176796 (Fed. Cir. May 28, 2021).  See Telepharma Disconnect:  Federal Circuit Reverses PTAB on Obviousness.  While the thrust of the Federal Circuit’s decision was about obviousness, the court also addressed the issue of whether a patent must be valid to constitute 102(e)(pre-AIA) prior art—and the answer was an unequivocal “no.”

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