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To antedate a reference, an inventor must demonstrate 1) a moment of “” and 2) reasonable diligence towards reducing the invention to practice.
In disapproving Cuozzo’s attempt to antedate two prior art patents, the Board applied a strict “independent corroboration” standard, pointing to insufficiently explained gaps in the inventor’s patenting efforts as demonstrating no “continuous exercise of reasonable diligence.” The Board first considered the inventor’s declaration, which stated that he first conceived the invention while receiving a speeding ticket. Cuozzo produced his driving record showing the police cited him for speeding that day.
The Tygar-Yee article is dated March 1, 1993, but there is no evidence as to the date of its publication. Cuozzo testified that he received a preliminary patentability report in “January 2001,” analyzed it, and return-corresponded on March 2.Characterizing “January 2001” as vague and noting “Cuozzo would benefit with a later date of receipt of the preliminary report,” the Board assigned “the earliest day in January,” as the receipt date.cases “indicate an emerging trend to more carefully scrutinize the evidentiary and economic basis of reasonable royalty-based patent damages awards in the setting of the appropriate royalty base, the application of the entire market value rule, and the calculation of the appropriate royalty rate.” We also noted that contemplated legislative reforms in the area of patent damages may likewise “seek to put the burden on district court judges to act as ‘gatekeepers’ and to closely scrutinize the evidence that is relied upon to prove patent damages.” Shortly after our article was published, the U. Senate announced a new “compromise” patent reform bill (full text available here), which includes a section addressing patent damages.Whereas prior versions of the patent reform bill which had been considered over the past years had contemplated introducing more specific statutory limitations on patent damages, hearing on patent damages mandatory.