This paper examines six decisions in which district courts have held patent claims invalid based on PTO-considered art. Part II describes the origin and limitations of the methodology used to select and analyze particular cases. Part III summarizes the pertinent law relating to the presumption of validity and anticipation, and it briefly considers the PTO’s inter partes patent reexamination process as an administrative analog of patent validity litigation. It ends with a summary of the factors weighing for and against the challenger. Part IV explores a few policy reasons that challengers should not be discouraged from relying on PTO-considered art, including the limited inquiry of patent examination, the PTO’s admission that it issues invalid claims, and the economic efficiency of relying on PTO-considered art to invalidate patent claims. In Part V, the cases are described in terms of how the courts analyzed the issue of anticipation and how they addressed, if at all, the issue of deference to the PTO. Finally, conclusions and opportunities for further research are presented in Part VI.
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