Thursday, November 08, 2007

CAFC adds new pitfall in "incorporation by reference"

The case Zenon v. U.S. Filter introduces a new pitfall in the use of the term concept of incorporation by reference. If one doesn't incorporate the entirety by reference by reciting the proper language, one incorporates less than the entirety. In a chain of applications in a patent family, a faulty incorporation thereby can render an earlier family member a 102(b) reference against a later family member, and that's what happened here. A trap for the unwary.


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