July 30, 2012
The CAFC has added proving a negative to the burdens a patentee must bear. Any reference cited is "presumptively enabling." An applicant has to "rebut the presumption of the operability of [the prior art patent] by a preponderance of the evidence." In other words, an applicant must prove by evidence that presumed evidence lacks evidence.
In Re Antor Media (CAFC 2011-1465) precedential; Judges Rader, Lourie (opinion) and Bryson
The opinion proves beyond the shadow of doubt that the CAFC is packed with imbeciles of specious logic, including Chief Judge Rader, who approved of the following tripe. Here is the given justification for presumptive enablement.
It would be overly cumbersome, perhaps even impossible, to impose on the PTO the burden of showing that a cited piece of prior art is enabling. The PTO does not have laboratories for testing disclosures for enablement.
Logically, and legally, a disclosure is enabling if one of skill in the art can read it and know how to practically apply the imparted information. The testing required is nothing more than that mental evaluation.
The presumption is that a patent examiner is one of skill in the art. Practically speaking, most examiners are near nitwit status, but that simply puts them on par with the average Federal judge. For legal purposes, to consider the government as a legitimate ongoing concern, it is de rigueur that the facade of integrity of the patent system appear to be preserved. Hence the legal elevation of patent examination to presumed competence, and the muffled marvel of patent attorneys across the land to the legal obscenities being uttered by the CAFC. Lawyers ("officers of the court," every single one) have already shed their ability to bite the hand that feeds them.
Further folly here is with having any presumption whatsoever. Evaluation of a prior art reference is a factual inquiry; it's quality unknown until examined. To presume a reference as invalidating is only a senseless statement of bias against patents, which is exactly what is going on here: one more chip on a mountainous pile that the conservative courts in this country have turned anti-patent, as a way to support the largest corporations with entrenched economic power.
Again here, the CAFC continues to prove itself a pathetic excuse for injustice. But making patents ever easier to kill by caprice serves large corporate interests, who would otherwise have to bear a "patent tax" for infringing the inventions of small fry, and so these loyal civil servants on the Federal bench do right by the plutocracy they are sworn to uphold.
Circling back to the small picture, it is completely reasonable that an applicant point out why a reference should not stick when an idiot examiner throws the mud on the wall to see if it sticks. But that is something of a far cry from the high bar of caprice that the court has put up: "rebut the presumption of the operability of [the prior art patent] by a preponderance of the evidence." "Rebut that a reference is not enabling by pointing out its deficiencies" would be sensible. In creating such insensible legal metrics, the CAFC is propagating corruption of the system it is sworn to uphold.
Posted by Patent Hawk at July 30, 2012 11:36 AM | Prosecution