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Section 102 Prior Art and Section 103 Obviousness: Leveraging CCPA and Early Federal Circuit Decisions

Withstanding Rejections and Attacks on Patent Validity and Patentability

Recording of a 90-minute premium CLE video webinar with Q&A

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Conducted on Thursday, January 7, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will guide patent counsel on leveraging decisions by the Court of Customs and Patent Appeals (CCPA) and the Federal Circuit in applying Sections 102 and 103 prior art and obviousness standards. The panel will examine lessons learned through CCPA and early Federal Circuit decisions, as well as offer strategies for evaluating prior art and obviousness, handling evidence, and overcoming assertions of unpatentability.


Recent Federal Circuit patent decisions demonstrate that some of the lessons from earlier Section 102 and 103 patent decisions by the CCPA may have fallen by the wayside. The CCPA developed a rich body of jurisprudence, which the Federal Circuit adopted as binding precedent. CCPA Section 102 and 103 jurisprudence provides a treasure trove of arguments for practitioners prosecuting and litigating patents in the face of assertions of unpatentability during ex parte prosecution and AIA's post-grant proceedings involving the Patent Trial and Appeal Board (PTAB), as well as invalidity in the district courts and the International Trade Commission.

In assessing and determining anticipation and obviousness, the CCPA clarifies that all relevant evidence must be considered. Counsel can draw on CCPA cases for guidance in handling evidence and overcoming the negative effects of contemporary Federal Circuit decisions. The CCPA and early Federal Circuit decisions also give detailed guidance in assessing whether the USPTO or a patent challenger has established a proper prima facie case of obviousness.

Patent counsel must understand and heed the lessons of these cases: (1) to avoid missteps, (2) to challenge, when appropriate, a prima facie case of obviousness, and (3) to base obviousness decisions on all available evidence. That evidence may show there is no prima facie case of obviousness and/or that any such case is rebutted.

Similarly, patent counsel must understand the current state of the law and the lessons from the CCPA on anticipation and obviousness. This will impact prosecution, litigation, and proceedings before the PTAB.

Listen as our authoritative panel of U.S. patent attorneys discusses how practitioners should analyze anticipation and obviousness, examining the lessons provided by selected CCPA and early Federal Circuit decisions. The panel will offer tactics to apply those CCPA and early Federal Circuit decisions to avoid remaking old mistakes.



  1. Assessing prior art
  2. Evaluating anticipation
  3. Evaluating obviousness
  4. Lessons from the CCPA and early Federal Circuit decisions
  5. Leveraging CCPA decisions and early Federal Circuit decisions to avoid untoward Sections 102 and 103 results


The panel will review these and other key issues:

  • How is evidence of unexpected properties by a claimed invention evaluated?
  • What lessons can patent counsel draw from CCPA decisions when asessing prior art? When applying the statutory obviousness standard?
  • What steps should patent counsel take going forward to avoid making the mistakes of the past?


Bhattacharyya, Arpita
Arpita Bhattacharyya, Ph.D.

Finnegan Henderson Farabow Garrett & Dunner

Ms. Bhattacharyya, Ph.D., practices all aspects of patent law, including district court and ITC litigation, patent...  |  Read More

Burgy, Adriana
Adriana L. Burgy

Finnegan Henderson Farabow Garrett & Dunner

Ms. Burgy focuses on opinion work, client counseling, patent prosecution and management, and litigation in the...  |  Read More

Carrano, Aliza
Aliza G. Carrano

Finnegan Henderson Farabow Garrett & Dunner

Ms. Carrano is a registered patent attorney, focusing her practice on complex patent litigation before the U.S....  |  Read More

Irving, Thomas
Thomas L. Irving

Finnegan Henderson Farabow Garrett & Dunner

Mr. Irving has 35 years of experience in the field of IP law. His practice includes due diligence, patent prosecution,...  |  Read More

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