The National Law Journal
January 19, 2009
On October 7, 2008, the Court of Appeals for the Federal Circuit in Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351 (Fed. Cir. 2008) seemingly repudiated one of the settled maxims of patent law – that anticipation is the “epitome” of obviousness, and that a patent that is not obvious therefore cannot be anticipated. Before Cohesive, courts had relied upon that maxim to assert that the issue of anticipation need not be considered once a finding of non-obviousness has been made. The Federal Circuit’s Cohesive Techs. decision thus could have a potentially significant impact upon the practice of patent litigation. In this article, we explain the decision and discuss its possible effects.