Monday, January 03, 2005

Issue of foreign sales in Star Fruits case before CAFC

In Star Fruits v. US, the CAFC took jurisdiction under 28 USC 1338(a) and 28 USC 1295(a)(1) [citing Helfgott, 209 F3d 1328]. An issue in the case was the scope of the requirements for compliance with 37 CFR 1.105 [information "reasonably necessary to properly examine or treat the matter."]

An underlying issue was the request for, and the expected use of, foreign sales of a plant to invalidate under 35 USC 102(b). The strict letter of 102(b) requires sales in the US, although post-1995, this may be questioned. Judge Newman dissented, and cited, among other cases, Overton Park v. Volpe, 401 US 402. Judge Newman also recognized the relevance of In re Elsner, 381 F2d 1125, on foreign sales to the disposition of the Star Fruits case.


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