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Expanded Protection Under 35 U.S.C. '103(c) via the CREATE Act
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.
Recognizing that this result could discourage collaborative research among co-workers, Congress added the former subsection (c) to '103 with the Patent Law Amendments of 1984:
Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.
This amendment was designed to disqualify certain nonpublic information known within an organization from the prior art available to judge obviousness and encourage communication among research team members, leading to the eventual patenting and dissemination of resulting inventions to the public.
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