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Expanded Protection Under 35 U.S.C. '103(c) via the CREATE Act

By Patrick J. Birde and Payam Moradian

On Dec. 10, 2004, 35 U.S.C. '103(c) was amended to expand the common ownership exception for prior art available under ”102(e), (f) and (g). See Cooperative Research and Technology Enhancement Act of 2004, Pub. L. 108-453, 118 Stat. 3596 (2004) (CREATE Act). The U.S. Patent and Trademark Office (USPTO) has published proposed rules to implement the CREATE Act and is currently accepting comments until Feb. 10, 2005. Changes to Implement the Cooperative Research and Technology Enhancement Act of 2004, 70 Fed. Reg. 1818 (2005) (proposed Jan. 11, 2005).

The relevant background to the CREATE Act began with In re Bass, 474 F.2d 1276 (CCPA 1973) and In re Clemens, 622 F.2d 1029 (CCPA 1980) in which the CCPA (now the Federal Circuit) held that subject matter developed by individual(s) on a research team may be available as prior art that can be used to determine obviousness (inventive step) of later inventions of the team.

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