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In re Kumar - The First Nanotech Patent Case in the Federal Circuit
Volume 2, Issue 4

Andrew S. Baluch, Nanotechnology Law & Business
Leon Radomsky, Foley & Lardner LLP
Stephen B. Maebius, Foley & Lardner LLP

On August 15, 2005, the Court of Appeals for the Federal Circuit decided what is arguably its first nanotech patent case called In re Kumar.  While the court disposed of the case on procedural grounds, several points important to nanotechnology patents may be drawn from this decision.  First, the court appears to treat a nanotechnology patent appeal no differently than patent appeals in cases involving other technologies.  In this regard, the court did not establish any special rules for nanotechnology patents.  Second, the U.S. Patent and Trademark Office (PTO) is apparently taking the quality of nanotechnology patents seriously, even sending the Solicitor himself to argue the PTOs position before the court.  Third, the court cited with approval a proposition that, in order to render a claimed invention unpatentable, the prior art must enable a person of ordinary skill in the art to make and use the claimed invention.  This argument is potentially useful for rebutting a prima facie case of obviousness where, as in this case, a nanotechnology product is made by a process that differs from the prior art.

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