The Real Issue in Fed. Circ. Dynamic Drinkware Decision

A recent decision out of the U.S. Court of Appeals for the Federal Circuit (CACF) introduced a legal interpretation that could affect the process of inter partes review. In an article published in Law360, Faegre Baker Daniels associates Rick Marsh and Lucas Tomsich argued that the CACF’s decision in Dynamic Drinkware LLC v. National Graphics Inc. includes “an interpretation of the law that could punish the first to invent for filing a provisional application by granting the second to invent a valid patent.”

“In other words,” the article said, “if the claims of the prior art patent do not have support in the provisional application, a challenged patent may survive unscathed—even if the provisional application discloses the exact invention claimed in the challenged patent.”