Wednesday, November 13, 2013

In re Foster case brief

In re Foster case brief summary
343 F.2d 980 (1965)

Appellant sought review of decision by the Board of Patent Appeals that affirmed the rejection of the claims in appellant's patent application as being anticipated by the prior Article.

Appellant invented elastomeric synthetic polymers. Appellant applied for a patent application and was rejected. The Board of Patent Appeals affirmed on the basis that appellant's invention was anticipated in the prior art without citing a specific statutory section. Appellant sought review.


  • The court held that although the examiner and the board had used the words "unpatentable over," it did not mean that they were relying on 35 U.S.C.S. § 103. 
  • Those words were sufficient to justify rejection under both §§ 102(b) and 103, and the court found that § 102(b) was not limited to claims that were completely anticipated. 
  • Further, the court determined that appellant had lost the right to several claims because those claims were obvious in the prior Article. 
  • However, the court did reverse as to appellant's remaining claims because appellant had discovered properties that were superior to those used in the prior Article.


The court upheld the rejection of some of appellant's patent claims because those claims were obvious in the prior art, but the court reversed rejection of appellant's claims that showed that plaintiff had discovered certain properties that were superior to those found in the prior Article.

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