Crazy Like a Fox: Quality of a Disclosure under Section 102(g)
The Fox Group, Inc. v. Cree, Inc. (Fed. Cir., 2012)
What kind of showing must an infringement defendant make to demonstrate a prior invention under Section 102(g), and what must a patentee do to show that the prior inventor abandoned, suppressed, or concealed? If the prior inventor makes an oral presentation and publishes a paper mentioning the composition but not revealing how to make it, is that enough? In The Fox Group, Inc. v. Cree, Inc., decided November 28, 2012, the Federal Circuit affirmed the U.S. District Court for the Eastern District of Virginia, which granted summary judgment of patent invalidity in favor of Cree. The panel disagreed about whether Fox met its burden of production on the abandon/suppress/conceal issue, but I think dissenting Judge Kathleen O’Malley has the more wily view.